Citation Nr: 0002293 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 98-12 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for plantar fasciitis of the left foot. 2. Entitlement to an increased (compensable) disability rating for residuals of injuries to both feet. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The veteran served on active duty from November 1961 to November 1964. This appeal comes before the Board of Veterans' Appeals (Board) from a November 1998 rating decision of the Montgomery, Alabama, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for plantar fasciitis of the left foot, and assigned a 0 percent, noncompensable disability rating for history of bilateral foot injury. FINDINGS OF FACT 1. Physicians who have examined the veteran have not distinguished the symptoms of the veteran's left plantar fasciitis from the symptoms of his service-connected disability residual to injury of the foot. 2. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 3. The veteran's left foot disability is currently manifested by pain, "foot slap," and peroneal nerve dysfunction. 4. The veteran's right foot disability is currently manifested by occasional pain with extended driving. CONCLUSIONS OF LAW 1. Disability of the left foot, to include plantar fasciitis, was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The criteria for a 10 percent rating for a left foot disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, 4.124a, Diagnostic Code 8521 (1999). 3. The criteria for a compensable rating for a right foot disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a November 1998 rating decision, the RO granted service connection for history of bilateral foot injury, but found that plantar fasciitis of the left foot was not service connected. The veteran has expressed disagreement with the denial of service connection for plantar fasciitis of the left foot. In addition, the veteran is seeking a higher disability rating for his service-connected disorders of the feet, residual to injuries in service. The veteran's feet were injured in service in 1962, when both feet got caught between the turret and the hull of a tank. A person who submits a claim for veteran's benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has defined a well grounded claim as a plausible claim; one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990. When a veteran has presented a well grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), VA has a duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). Summary of the Evidence The veteran's service medical records reflect that he sustained injuries to both feet in November 1962, when his feet got caught between moving parts of a tank. The treating physician noted that he had tenderness over the tarsus and calcaneus of each foot, with particular tenderness over the left calcaneus. X-rays revealed no fractures in the feet or ankles. The treating physician put the veteran's left leg in a cast, and the veteran received a physical profile recommending no weightbearing on the left leg for two weeks. The claims file contains recent private medical records that address the condition of the veteran's feet. November 1997 treatment notes from Dr. Brandner noted a history of an injury of the veteran's left foot during service. Dr. Brandner observed that the veteran's left foot had a full range of motion, with no swelling, edema, or deformity. Dr. Brandner referred the veteran to an orthopedist. Orthopedist Scott V. Appell, M.D., examined the veteran later in November 1997. Dr. Appell noted tenderness over the medial plantar fascia, a mildly positive Tinel's over the tarsal tunnel, and decreased sensation in the great toe. Dr. Appell's impression was plantar fasciitis with impingement of the posterior tibial nerve. Dr. Appell recommended arch supports, heel inserts, and anti- inflammatory medicine, with the addition of night splints later, if necessary. In June 1998, Dr. Appell wrote that it was quite possible that the veteran's foot injury during service could be the cause of his present chronic foot pain. In an October 1998 hearing at the RO, the veteran reported that his left foot tightened up at night, so that he could not stand on it in the morning. He reported that he currently used a night splint, which helped with that problem. He reported that he also wore molded pads in his shoes. He reported that his work, as a maintenance supervisor, required him to be standing and walking constantly. The veteran reported that he had pain in his right heel if he drove a car for a couple of hours. He stated that symptoms in his left foot were considerably worse than those in his right foot. In June 1999, the veteran was examined by Alvin M. Stinson III, M.D., a specialist in physical medicine and rehabilitation. The veteran reported numbness in the left foot and great toe. He reported weakness of the left calf, and he reported that his left foot sometimes slapped down when he walked. Dr. Stinson found symmetrical reflexes in the veteran's lower extremities. There was diminished sensation in the medial aspect of the left leg, extending into the medial aspect of the left foot. Dr. Stinson also noted diminished sensation in the left posterior calf region. Electrodiagnostic studies of the veteran's motor and sensory nerves revealed abnormalities of the left peroneal motor nerve and of the sural sensory nerves bilaterally. Dr. Stinson reported that the findings suggested previous denervation with subsequent reinnervation. Dr. Stinson reported that the "slap foot," foot weakness, and neurological findings could result either from mild peripheral neuropathy, or from the previous injuries to the feet and ankles that the veteran had described. In July 1999, podiatrist Bart A. West, D.P.M., diagnosed the veteran's disorder as status post military trauma with secondary peroneal nerve dysfunction and drop foot of the left foot. In July 1999, the veteran had a hearing before the undersigned Board Member at the Board's offices in Washington, D.C. The veteran indicated that he had not sustained any new injury to his feet since the injuries during service. He reported his current symptoms were predominantly in his left foot. He reported that he had pain in his left foot at night, in the morning, and late in the day. He stated that his work required him to stay on his feet, to walk around, and sometimes to climb ladders. He reported that he had pain in his left foot with these activities. He reported that he had weakness and foot drop in his left foot. He stated that he wore orthotics in his shoes, and sometimes a cast or splint at night. He reported that he could not participate in athletic activities because of his foot problems. He indicated that he felt that he could not change jobs, because he would not be hired for a new job because of his foot problems. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). The veteran is seeking service connection for disability of his feet residual to injury during service. In its November 1998 rating decision, the RO granted service connection for disability due to injury of the feet during service, but denied service connection for plantar fasciitis, one of the recent diagnoses with regard to the veteran's feet. After examining the veteran, Dr. Appell, Dr. Stinson, and Dr. West each indicated that it was possible that the veteran's current symptoms were attributable to his injury during service. When Dr. Appell diagnosed plantar fasciitis, he did not indicate that plantar fasciitis was separate and distinguishable from the veteran's symptoms of foot tenderness and sensory changes. Overall, the Board finds that the record does not support treating the veteran's plantar fasciitis as a condition separate from his service- connected residuals of foot injuries. Therefore, the Board finds that service connection for plantar fasciitis is to be included in service connection for residuals of foot injuries. Increased Rating The Board has decided, above, that the current disability of the veteran's feet, including plantar fasciitis, is service connected. Accordingly, the Board will address the veteran's claim for an increased rating for his bilateral foot disability in light of all of the current manifestations of his foot disabilities. The Court has established that when a claimant was awarded service connection for a disability, and the claimant subsequently appealed the RO's initial assignment of the rating for those disabilities, the claim is well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218 (1995). The veteran appealed the rating initially assigned for his foot injuries. The rating schedule provides for higher ratings for such injuries. The Board finds, therefore, that his claim for an increased rating is well grounded. The Board also finds that the facts relevant to that claim have been properly developed, and that VA has satisfied its statutory obligation to assist the veteran in the development of that claim. Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1999). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1999). Nevertheless, the present level of disability is of primary concern, and the past medical reports do not have precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). VA regulations provide, and the Court has emphasized, that evaluation of a musculoskeletal disability must include consideration of the veteran's ability to engage in ordinary activities, including employment, and of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (1999); DeLuca v. Brown, 8 Vet. App. 202 (1995). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (1999). The Board finds that assigning separate ratings for the veteran's left foot and right foot would be appropriate and more accurate, particularly as the evidence indicates that the manifestations of his left foot and right foot disabilities differ in degree. The recent evidence indicates that the veteran's left foot has pain with activity, and weakness, with "slap foot," due to nerve abnormalities. Under the rating schedule, incomplete paralysis of the peroneal nerve is rated at 10 percent if mild, 20 percent if moderate, and 30 percent if severe. 38 C.F.R. § 4.124a, Diagnostic Code 8521 (1999). The veteran's manifestations of diminished sensation in the great toe and intermittent slap foot, without greater loss of sensation, strength, or function, appear most consistent with slight nerve dysfunction, warranting a 10 percent rating. The veteran has indicated that his right foot is largely asymptomatic, except for pain in the right heel if he drives a car for about two hours or more. Foot injuries other than those specifically addressed in the rating schedule may be rated at 10 percent if moderate, 20 percent if moderately severe, and 30 percent if severe. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (1999). The evidence indicates that symptoms in the veteran's right foot are fairly rare, and thus producing no more than slight impairment. As the impairment of the right foot is not shown to reach the level of moderate, the Board finds that a compensable rating for the right foot disability is not warranted. In reaching the determination regarding the veteran's foot disabilities, the Board has considered whether staged ratings should be assigned. The Board concluded that the disabilities have not significantly changed, and that uniform evaluations are appropriate in this case. Review of the record reveals that the RO did not expressly consider referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although the RO did not expressly consider 38 C.F.R. § 3.321(b)(1), the Board has reviewed the record with these mandates in mind, and finds no basis for further action on this question. VAOPGCPREC 6-96 (1996). ORDER Entitlement to service connection for left plantar fasciitis, to be included as part of service-connected residuals of foot injuries, is granted. Entitlement to a 10 percent rating for a left foot disability is granted, subject to laws and regulations controlling the disbursement of monetary benefits. Entitlement to a compensable rating for a right foot disability is denied. JEFF MARTIN Member, Board of Veterans' Appeals