Citation Nr: 0004014 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 94-04 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for a bilateral foot disability, currently assigned a combined 30 percent rating. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Salari, Associate Counsel INTRODUCTION The appellant had active duty service from October 1976 to October 1979. This appeal was previously before the Board of Veterans' Appeals (Board) from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has remanded this case for further development on two prior occasions. Additional development has been accomplished and the claim is now returned to the Board for a decision. The Board notes that the appellant's representative has raised claims for entitlement to an increased rating on an extraschedular basis and entitlement to a total disability rating due to individual unemployability. This is referred to the RO. FINDING OF FACT The appellant's bilateral foot disability is primarily manifested with subjectively tender or painful calluses and post-surgical scars. CONCLUSION OF LAW The criteria for an increased rating for a bilateral foot disability are not met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. 4.25, Part 4, Diagnostic Codes 5279, 5284, 7804 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The evidence of record indicates that the appellant was initially service connected for calluses of both feet effective from October 1979. His disability of the feet was later expanded to include metatarsalgia and calluses of both feet and residuals of inclusion cyst of the left foot. The appellant has been awarded a 10 percent rating for the metatarsalgia and calluses for each foot, and a 10 percent rating for the postoperative residuals of the inclusion cyst of the left foot. In his testimony before the undersigned in April 1996, the appellant described bilateral foot pain, worse on the left, and the impact of the pain on his work as a church maintenance worker. The current medical evidence of record include treatment records dated from the 1980's to the present which indicate that the appellant has received treatment, to include surgery, for complaints of chronic pain in the feet. VA hospital records indicate that in 1989, he underwent excision of epidermal inclusion cyst in the plantar aspect of the left foot. Due to painful calluses, in December 1992, he underwent an Akin osteotomy of the left proximal phalanx with Herbert fixation. He also underwent an abductory dorsiflexory wedge osteotomy of the left fifth metatarsal head, and a cheilectomy of the first metatarsal head of the left foot. In April 1993, he again underwent surgery due to mild hallux abducto valgus deformity and painful pinch callous IPJ right hallux. The type of surgery was an Akin wedge osteotomy with wire fixation and a silver bunionectomy. None of the surgeries involved resection of the metatarsal head. A report of a VA examination, dated in September 1996, indicates that the appellant had constant pain in the left foot which was worse with weight bearing. He stated that after six hours, he was unable to stand on his foot. He reported that he had a dead feeling in the plantar aspect of his left foot since his surgery. Physical examination showed that he favored his left foot in standing and squatting. He did heel and toe rising satisfactorily. "There [were] calluses on the medial aspect of the big toe and lateral aspect of the base of the fifth toe bilaterally and on the plantar aspect of the metatarsal arch bilaterally, much worse on the left than the right." The examiner reported numerous scars on the appellant's feet; the location of some of the scars (i.e. which foot) was not reported. It was noted that all of the scars on the left foot were tender. He had 20 degrees of dorsiflexion and 50 degree of plantar flexion on his right ankle. Subtalar motion (presumably on the right) was 10 degrees of eversion and 30 degrees of inversion. On the left, he had 10 degrees of dorsiflexion, 50 degrees of volar flexion, 10 degrees of eversion, and 30 degrees of inversion. He had 30 degrees of dorsiflexion of the first MP joint of the left toe, and 50 degrees of volar flexion. There were no secondary skin or vascular changes to the feet. An addendum report, dated in January 1997, indicates that in the examiner's opinion, the appellant was able to engage in sedentary work; he was unable to perform work requiring him to be on his feet for any length of time, climb ladders, or do heavy manual labor. A report of a VA examination, dated in January 1998, indicates that the appellant reported that a very tender callous continued to recur at the medial aspect of the left first big toe and at the lateral aspect of the foot. The ball of the left foot was persistently painful. He indicated that his post-surgical scars used to be tender for a few years, but not anymore. The recurrent pinch callous at the medial aspect of the right first toe was very tender. He had no symptoms when not weight bearing. He had symptoms on both feet on prolonged standing and worse after walking a mile or after 3 to 4 hours of walking. Relief was obtained promptly and immediately when he got off of his feet, but when he started walking again, the same degree of pain would recur. His symptoms interfered with his work as a maintenance person in a Baptist church. He favored the right foot and continued to walk with weight bearing on the left heel and the lateral aspect of the left foot. At times, he had swelling at the bottom of the left foot after prolonged walking. He stated that all of the calluses were tender and painful in the range of 8 on a scale of 0 to 10. He also described a sensation "like an ice pick pain" into the right and left foot. He denied having had redness or calor, and weakness on any part of either foot. He had occasional stiffness, easy fatigability and lack of endurance of both feet. He was able to ride the motorcycle without discomfort to his feet. Physical examination noted that there was no inflammation or swelling of the feet. The pedal pulses were strong in both feet and there was no purplish discoloration. Skin temperature was normal. The right foot had a non-tender scar measuring 4 cm at the medial aspect of the right first metatarsal area. There was a whitish very hard and dry pinch callous measuring 1.5 cm in diameter located at the medial aspect of the first right toe which was subjectively tender at a level 8 on a scale of 0 to 10. There was no inflammation, no redness, or tenderness in the area of the callous. There was also thickening at the lateral plantar aspect of the right foot. The right foot could invert and evert with some subjective discomfort when the callous touched the floor. The right big toe and the rest of the toes could plantarflex and dorsiflex with the motor power of 3/4 and there was no area of tenderness, calor, or swelling. On the left foot, there were 3 scars. There was a curvilinear non-tender scar at the plantar aspect of the left foot, measuring 3 1/2. Another scar, which was from the surgery in 1992, measured 4 cm at the dorsal medial aspect of the left big toe. The scar was non-tender. The bunion near the scar was tender, however. The third scar, also from the 1992 surgery measured 4 cm and was located at the dorsolateral border of the left foot. This scar was also non-tender. The motor power of the left big toe was 2/4 against active resistance. He had flexion and extension capacity for the left big toe but not as flexible as the right big toe. There was no breakdown or alteration of the skin in either foot. The scars were a little depressed but non-tender and without inflammation. There was some disfigurement by the appearance of the scars. There was no keloid formation. The pedal pulses were strong bilaterally. There was no discoloration, redness, calor, or edema on either foot. Motion of the joints on either foot and toes did not provoke pain. The subjective tenderness was localized at the area of the calluses and on the thickened area under the ball of the left foot. He was able to walk without a cane but evidently putting weight on the heel and the lateral aspect of the left foot trying to avoid touching the callous to any object or to the floor. He was able to squat with subjective pain on the left foot while squatting. X-rays showed post-operative changes with a suture in the proximal phalanx of the great toe in the right foot. The left foot showed post-operative changes with bone screws in the proximal phalanx of the great toe and the 5th metatarsal. The diagnoses were (1) calluses on both feet; (2) residual scars from surgery of the left foot and right foot; (3) status post bunionectomy and Akin osteotomy, bilateral feet. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes (DC) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In evaluating service connected disabilities, the Board must assess functional impairment and 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. § 4.10. Ratings based on limitation of motion do not subsume the various rating factors in 38 C.F.R. §§ 4.40 and 4.45, which include pain, weakness, and fatigability. These regulations, and the prohibition against pyramiding in 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including flare-ups. DeLuca v. Brown, 8 Vet.App. 202, 206-08 (1995). In other words, when rated for limitation of motion, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. The appellant's bilateral foot disability can be rated under the criteria set forth under DC 5279 and 5284. Under DC 5279, metatarsalgia, anterior, unilateral or bilateral, warrants a 10 percent rating. The appellant is already receiving a higher rating than DC 5279 would allow for bilateral involvement. Under DC 5284, a 10 percent rating is granted for moderate foot injuries; a 20 percent rating is granted for moderately severe foot injuries; and a 30 percent rating is granted for severe foot injuries. The appellant's foot disability can also be rated under DC 7804, by analogy. Under DC 7804, a 10 percent rating is granted for scars that are superficial, tender, and painful on objective demonstration. With respect to the left foot, the most recent medical evidence shows callosities at the medial aspect of the first toe and the lateral aspect of the fifth toe. The appellant also has a post- operative scar over the ball of the foot. Although he describes subjective pain or tenderness associated with the callosities, examination reveals that only the callosity of the first toe is objectively tender. He also has some weakness and loss of flexibility of the first toe and easy fatigability and lack of endurance of the foot. On the other hand, motion of the foot is within normal limits, the scars are not objectively tender and painful, and, according to the medical evidence, the foot is primarily symptomatic with weight bearing. Pain is eliminated on non- weight bearing and worsened with prolonged activity. Despite his symptoms, the record also indicates that he can perform prolonged walking and prolonged standing. Taking all these factors into consideration, the Board finds that there is moderately severe left foot injury, but no more than moderately severe injury. Accordingly, a rating greater than 20 percent for the left foot is not warranted under DC 5284. The noted pain, fatigability and weakness are contemplated by the 20 percent rating under DC 5284. An increased rating is also not warranted under DC 7804 because only one of the involved areas of the left foot is objectively tender and painful. With respect to the right foot, the recent medical evidence shows callosities involving the first metatarsal and the lateral plantar aspect of the foot. The appellant describes subjective foot discomfort/ tenderness, but the callosities are not objectively tender and painful. He also has some weakness of the toes. On the other hand, motion of the foot is within normal limits, and despite easy fatigability and lack of endurance, prolonged walking and standing are possible. Taking these factors into consideration, the Board finds that he has moderate right foot injury, but no more than moderate right foot injury. Accordingly, he is not entitled to a higher rating under the provisions of DC 5284. In reaching this conclusion, the Board has considered the factors set forth at 38 C.F.R. §§ 4.40, 4.45 and 4.59. The noted pain, fatigability and weakness are contemplated by the 10 percent rating under DC 5284. As for rating by analogy to DC 7804, he is also not entitled to a higher rating because the involved areas of the foot are not objectively tender and painful. Thus, taking into consideration the criteria set forth under 38 C.F.R. § 4.25, a combined rating greater than the current 30 percent already assigned is not warranted. ORDER Entitlement to an increased rating for a bilateral foot disability is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals