BVA9502087 DOCKET NO. 92-20 315 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. An increased disability rating for bilateral pes planus, to include hallux valgus, other foot injuries and osteoarthritis, currently evaluated as 30 percent disabling. 2. An increased (compensable) disability rating for osteoarthritis of the right foot. 3. An increased (compensable) disability rating for osteoarthritis of the left foot. 4. An increased disability rating for arthralgia, right knee, currently evaluated as 10 percent disabling. 5. An increased disability rating for arthralgia, left knee, currently evaluated as 10 percent disabling. 6. An increased disability rating for degenerative joint disease of the cervical spine, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Barry F. Bohan, Counsel INTRODUCTION The appellant served on active duty in the United States Army from June 1962 to July 1986. Service connection was initially granted for an number of disabilities, and disability ratings were assigned, in a December 1986 decision of the Department of Veterans Affairs Regional Office (VARO) in Manchester, New Hampshire. This appeal arises from a June 1991 VARO rating decision which denied the appellant increased disability ratings for service-connected disabilities. In October 1992, a personal hearing, at which the appellant testified, was conducted before a member of the Board at VARO. The case was received and docketed at the Board in November 1992. In May 1994, the Board remanded this case so that additional medical evidence could be obtained. This was done, and in August 1994, VARO issued a rating decision which granted the appellant an increased disability rating, from noncompensably disabling to 30 percent disabling, for service-connected bilateral pes planus. The disability was reclassified as "bilateral pes planus, to include hallux valgus, other foot injuries and osteoarthritis". Increased disability ratings were denied with respect to the five other issues presented on this appeal, including osteoarthritis of the feet. The case was thereupon returned to the Board, where it was received in December 1994. The Board notes that the appellant's representative, a December 1994 informal presentation, requested separate disability ratings for degenerative arthritis of both of the appellant's ankles. Since those issues have not yet been developed for appellate purposes, they may not be considered by the Board in this decision. The issue of service connection for the claimed bilateral ankle disorder is referred to VARO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that six service-connected disorders are each of sufficient severity as to warrant increased disability ratings. Specific contentions will be discussed where appropriate below. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that increased disability ratings, to 20 percent, should be granted for pes planus, other foot injuries and osteoarthritis of both feet and arthralgia of both knees. An increased disability rating is denied for degenerative joint disease of the cervical spine. FINDINGS OF FACT 1. The appellant's service-connected right foot pes planus, to include other foot injuries and osteoarthritis, is currently manifested by flat feet; residuals of surgery, including scars; and calluses. He experiences constant pain and limitation of motion. 2. The appellant's service-connected left foot pes planus, to include hallux valgus, other foot injuries and osteoarthritis is currently manifested by flat feet; residuals of surgery, including scars; and calluses. He experiences constant pain and limitation of motion. 3. The appellant's service-connected arthralgia of the right knee is currently manifested by pain, moderate effusion, some limitation of motion, a lot of crepitus and a limp. 4. The appellant's service-connected arthralgia of the left knee is currently manifested by pain, mild effusion, some limitation of motion, moderate crepitus, and ligament laxity. 5. The appellant's service-connected degenerative joint disease of the cervical spine is currently manifested by reports of neck pain, episodes of neck stiffness, and episodes of numbness of the upper extremities. CONCLUSIONS OF LAW 1. The appellant's service-connected right foot pes planus, to include other foot injuries and osteoarthritis, is no more than 20 percent disabling according to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5283, 5284 (1993). 2. The appellant's service-connected left foot pes planus, to include hallux valgus, other foot injuries and osteoarthritis is no more than 20 percent disabling according to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5276, 5280, 5282 (1993). 3. The appellant's service-connected arthralgia, right knee is no more than 20 percent disabling according to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1993). 4. The appellant's service-connected arthralgia, left knee is no more than 20 percent disabling according to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1993). 5. The appellant's service-connected degenerative joint disease of the cervical spine is no more than 10 percent disabling according to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5290 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is seeking increased disability ratings for several service-connected disorders. Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, we believe that this case has been adequately developed for appellate purposes by VARO and that we may therefore proceed to a disposition on the merits without the necessity of another remand. In evaluating the appellant's request for an increased rating, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1991). In so doing, it is our responsibility to weigh the evidence before us. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In evaluating service-connected disabilities, the Board looks to functional impairment. We attempt 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 (1993). In the interest of clarity, the Board will first briefly review the appellant' relevant medical history. 38 C.F.R. §§ 4.1, 4.41 (1993); Peyton v. Derwinski, 1 Vet.App. 282 (1991). The issues presented on this appeal will then be discussed. Medical history The appellant's service medical records reveal a long history of chronic discomfort of his knees and feet. His knee problems began gradually, with no history of injury. In November 1981, severe bilateral chondromalacia was diagnosed. The appellant had a right lateral meniscectomy in October 1983. He underwent arthroscopy of the left knee with removal loose bodies and medial meniscectomy in April 1985. The appellant's foot problems reportedly began with ill-fitting boots during Advanced Infantry Training in 1962. Mild bilateral pes planus was diagnosed in February 1971. Degenerative changes of the right foot were noted in June 1982. In April 1986, he underwent osteotomy of the first and second toes of the right foot, with a prosthetic implant which eventually became dislocated. In December 1991, the appellant underwent another osteotomy of the second metatarsal of the right foot. Surgery was performed on the left first metatarsal in 1993. During service, the appellant also complained of neck pain. X- rays of the cervical spine taken in October 1986 and in February 1991 revealed degenerative disc disease at C5-6. Recent medical evidence will be discussed where appropriate below. 1. An increased disability rating for bilateral pes planus, to include hallux valgus, other foot injuries and osteoarthritis, currently evaluated as 30 percent disabling. 2. An increased (compensable) disability rating for osteoarthritis of the right foot. 3. An increased (compensable) disability rating for osteoarthritis of the left foot. Recent medical evidence The appellant was examined by a private physician on a fee basis in June 1992. X-rays revealed bunion deformities and degenerative changes bilaterally. Pes planus of both feet was noted on physical examination. The right great toe was 1/2" shorter than the left great toe. The proximal interphalangeal joint of the right great toe was fused in the neutral position. The examiner's diagnosis was degenerative arthritis of metatarsophalangeal joints of left and right great toes; fusion of proximal interphalangeal joint of right great toe; first degree pes planus. Pursuant to the Board's May 1994 remand, VA examinations of the appellant's feet was completed in July 1994. The appellant was first examined by a physician, who referred him to an orthopedic specialist. The appellant reported constant pain in both feet. He worked for the United States Postal Service but could not stay on his feet during an entire 8 hour shift. On physical examination of the right foot, healed surgical scars were noted. On physical examination of the left foot, healed surgical scars were noted. Mild pain on motion of the first metatarsophalangeal joint was noted. The appellant was not able to stand on his toes because of pain. He was also not able to stand on the inner edge of his feet or fully on the outer edge of his feet. He was noted to have a right-sided limp and he walked with the assistance of a cane. The second examination was done by a specialist in orthopedics The examiner noted third degree pes planus with moderate pronation of both feet bilaterally, somewhat worse on the left. The pes planus was semi rigid. The appellant walked with a flat- foot type gait. He could not come up on his toes at all. On physical examination, a callus was noted along the medial border of the right heel. Surgical scars were also identified. There was a gross bony enlargement of the first metatarsal phalangeal joint. The right great toe was considerably shortened. Moderate hammertoes of the left foot were noted, as well as mild calluses and surgical scars. Tenderness was noted on all metatarsophalangeal joints. The orthopedic specialist's diagnoses were: bilateral third degree pes planus with moderate semirigid pronation of the feet; absence of metatarsophalangeal joint on the first and second rays on the right side with bony enlargement and some instability of the great toe joint; moderate hammertoes and mild plantar calluses; mild hallux valgus and metatarsophalangeal joint arthritis on the left. The appellant testified at a personal hearing in October 1992. In essence, he reported constant pain of both feet. He walked with the aid of a cane and wore specially modified shoes which provided some relief. Analysis Before proceeding further, the Board is confronted with a problem which was created by the August 1994 VARO rating decision, which granted the appellant an increased disability rating, from noncompensably disabling to 30 percent disabling, for service- connected bilateral pes planus. The appellant's bilateral foot disability was reclassified as "bilateral pes planus, to include hallux valgus, other foot injuries and osteoarthritis". 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5280, 5283, 5284, 5003. In effect, all of the appellant's bilateral foot pathology was rated together. From a rating standpoint, this made good sense, since it is difficult to assign separate ratings for the appellant's several different foot disorders. However, even though osteoarthritis of both feet was made part of the service- connected pes planus and other foot disorders, osteoarthritis of both feet still remains as two separate service-connected disabilities. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5284 (1993). Veterans are compensated for disability arising from injury or disease incurred in service through the means of the VA Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.321 (1993). In general, every effort must be made to accurately rate each veteran according to his or her disabilities, so that decisions will be "equitable and just". 38 C.F.R. § 4.6 (1993). Ordinarily, all disabilities are to be rated separately. 38 C.F.R. § 4.25 (1993). It should be noted, however, that the evaluation of the same disability under different diagnoses is to be avoided. 38 C.F.R. § 4.14 (1993); Fanning v. Brown, 4 Vet.App. 225, 230 (1993). After having carefully considered the matter, the Board believes that the most appropriate method of rating the appellant's foot disorders is to rate each foot separately. Thus, the issue under consideration, an increased disability rating for bilateral pes planus, to include hallux valgus, other foot injuries and osteoarthritis, currently evaluated as 30 percent disabling, will be treated as two separate issues. As will be discussed below, the osteoarthritis of each foot will be considered along with the remainder of the appellant's foot pathology; because rating those disorders separately would be in violation of the anti pyramiding provision. 38 C.F.R. § 4.14 (1993). The two issues involving compensable disability ratings for osteoarthritis of the right foot and the left foot will therefore not be discussed. The Board further believes, based on the appellant's medical records, that disability ratings may be built up using appropriate Diagnostic Codes. 38 C.F.R. § 4.27 (1993). The appellant's right foot disability will be rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5283, and 5284 (1993). The appellant's left foot disability will be rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5276, 5280 and 5282 (1993). Under the criteria in the Schedule for Rating Disabilities, foot disability is rated as follows: moderate - 10%; moderately severe - 20%; severe - 30%. 38 U.S.C. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5276-5284 (1993). The words "slight", "moderate" and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 C.F.R. 4.6 (1993). It should also be noted that use of terminology such as "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. 4.2, 4.6 (1993). The Board wishes to note that, in assigning disability ratings, the provisions of 38 C.F.R. § 4.40 (1993) concerning pain and functional loss have been taken into consideration. With respect to each of the appellant's feet, the medical evidence reviewed above demonstrates that the appellant is presently experiencing symptomatology which consists of flat feet; residuals of surgery, including scars; and calluses. He experiences constant pain and limitation of motion. Based on the evidence, the Board believes that pathology associated with each of the appellant's feet more closely approximates the moderately severe level than the moderate level. 38 C.F.R. § 4.7 (1993). Accordingly, a 20 percent disability rating is granted with respect to both the right foot and the left foot. There is no evidence of record, in the opinion of the Board, which supports a disability rating higher than 20 percent. The appellant is able to stand and to walk, and he can perform his job at the post office, albeit with increasing discomfort as the day wears on. 4. An increased disability rating for arthralgia, right knee, currently evaluated as 10 percent disabling. The schedular criteria call for a 10 percent disability rating for slight impairment of a knee. A 20 percent disability rating is warranted for moderate impairment, and a 30 percent disability rating is assigned for severe impairment. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1993). During the June 1992 fee basis examination, the appellant complained of right knee pain, which was aggravated by standing and walking and relieved by rest. X-rays revealed minor degenerative changes of the right knee. The appellant walked using a cane in his right hand. On physical examination, the right knee demonstrated full range of motion. There was no effusion. Ligaments were stable. There was tenderness over the medical joint line of the right knee. Diagnosis was arthralgia of the right knee. During the July 1994, the appellant complained of pain, swelling and instability of his right knee. In March 1994, he had his knee aspirated and 180 cc. of bloody aspirate was withdrawn. The appellant was noted by the examiner to walk with a right knee limp. On physical examination, moderate effusion of the right knee was noted by the examiner. The range of motion of the right knee was 0 to 113 degrees. There was "a lot" of crepitus and there was tenderness along the patellar articular surface laterally and medially and also along the medial joint line. The ligaments were stable. An unremarkable surgical scar was also noted. The examiner's diagnosis was osteoarthritis of the right knee. At his October 1992 hearing the appellant testified that his right knee was painful and swelled frequently. The knee was unstable and had caused him to fall several times. Based on the foregoing medical evidence and the appellant's hearing testimony, the Board has concluded that a 20 percent disability rating should be granted. The appellant's service- connected right knee disorder is currently manifested by pain, effusion and some limitation of motion. In addition, the appellant walks with a limp favoring his right knee. In the opinion of the Board, this symptomatology is productive of moderate impairment of the right knee. There is no evidence of record which supports a conclusion that the knee is severely impaired. The appellant can ambulate and is able to perform his duties with the United States Postal Service, with some limitations. 5. An increased disability rating for arthralgia, left knee, currently evaluated as 10 percent disabling. During the June 1992 fee basis examination, the appellant complained of left knee pain, which was aggravated by standing and walking and relieved by rest. X-rays revealed very minor hypertrophic change. On physical examination, the left knee demonstrated full range of motion. There was no effusion. Ligaments were stable. There was tenderness over the medical joint line of the left knee. Diagnosis was arthralgia of the left knee. During the July 1994 VA orthopedic examination, the range of motion of the appellant's left knee was 0 degrees to 130 degrees. Mild effusion was present, and there was moderate crepitus on flexion and extension. There was laxity of the medial collateral ligament on extension. There was tenderness along the lateral joint line and about the patella on compression. Rotational tests could not be properly done due to limited flexion. The examiner's diagnosis was osteoarthritis of the left knee. At his October 1992 personal hearing, the appellant testified that he experienced pain in his left knee. Based on the above evidence, the Board finds that the appellant's service-connected left knee disorder is currently manifested by pain, swelling, ligament laxity, and limited motion. It is believed that such symptoms are more indicative of moderate impairment of the left knee than of slight impairment. 38 C.F.R. § 4.7 (1993). Accordingly, a 20 percent disability rating is granted. There is no evidence on which the Board can rely in support of a disability rating higher than 20 percent. 6. An increased disability rating for degenerative joint disease of the cervical spine, currently evaluated as 10 percent disabling. The schedular criteria call for a 10 percent disability rating for slight limitation of motion of the cervical spine. A 20 percent disability rating is warranted for moderate limitation of motion, and a 30 percent disability rating is assigned in cases of severe limitation of the cervical spine. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5290 (1993). During the June 1992 VA fee basis examination, the appellant complained of neck pain with intermittent numbness of his hands and arms. X-rays revealed a minor hypertrophic changes at C5 and C6, and a suggestion of minimal posterior spurring at C5-6. No significant abnormality was present. On physical examination, there was full range of motion of the cervical spine in all directions, without spasm. However, the appellant complained of discomfort with all cervical motions. Neurological examination of the upper extremities was unremarkable. The examiner's diagnosis was degenerative cervical spondylosis. During the July 1994 VA examination, the appellant complained of frequent episodes of neck pain and stiffness. He also reported a sensation of numbness on the back of his neck. The diagnosis was probable spondylosis of the cervical spine. With respect to his cervical spine, the appellant testified at his October 1993 hearing that he experienced a constant dull pain in his neck, as well as occasion numbness of his upper extremities. In the absence of demonstrated limitation of motion of the appellant's cervical spine, the Board believes that an increased disability rating should be denied. The Board is, of course, cognizant of the appellant's reports of neck pain and other symptomatology. This symptomatology has been taken into consideration. 38 C.F.R. § 4.40 (1993). The functional loss caused by the appellant's neck disorder, however, appears to be slight. Accordingly, the assigned disability rating of 10 percent is adequate based on the present record. ORDER An increased disability rating for pes planus, other foot injuries and osteoarthritis of the right foot is granted, to 20 percent, subject to controlling regulations applicable to the payment of monetary benefits. An increased disability rating for pes planus, hallux valgus, other foot injuries and osteoarthritis of the left foot is granted, to 20 percent, subject to controlling regulations applicable to the payment of monetary benefits. An increased disability rating for arthralgia, right knee is granted, to 20 percent, subject to controlling regulations applicable to the payment of monetary benefits. An increased disability rating for arthralgia, left knee is granted, to 20 percent, subject to controlling regulations applicable to the payment of monetary benefits. An increased disability rating for degenerative joint disease of the cervical spine is denied. KENNETH R. ANDREWS, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.