Evaluating Disability Levels; Application Of 38 Cfr §§ 4.40 And 4.45

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DECISION ASSESSMENT DOCUMENT

DOCKET NO.: 96-947

ACTIVITY: RATING

NAME: Fenderson v. West

ISSUE(S): Evaluating disability levels; Application of 38 CFR §§ 4.40 and 4.45; "Staged" ratings

ACTION BY COURT: Remand/Affirmance DECISION DATE: 1-20-99

FACTS: The Court of Veterans Appeals (Court or CVA) found that there were four issues on appeal, that all others had been abandoned. The first two of these issues were claims for increased evaluation of service-connected migraine headaches and left foot plantar fasciitis. Also, the disposition of the claims for service connection of right leg varicose veins and for an increased rating for residuals of right testicular surgery remained on appeal. The veteran was discharged from his second period of active duty in April 1988. In April 1988, he filed his claim for, among other things, service connection for migraines, heel pain and chronic pain in his testicles.

Migraine headaches: A May 1988 VA medical examination report showed a diagnosis of headaches, "probably tension and anxiety related". VA outpatient treatment notes from the same month showed a history of "headache every week for 3-4 years." The record showed private hospital emergency room reports for migraine headache pain in June 1988, November 1988, and February 1989. A VA medical center discharge note dated July 1988 showed "atypical" migraine headaches. In May 1989, the regional office (RO) granted service connection with a 10% evaluation for migraine headaches. VA progress notes dated in July 1989 showed the veteran had complained of headaches two to three times a week and had used Tylenol #3 for relief. In December 1989, the RO confirmed the evaluation given in the May 1989 decision.

The veteran filed a notice of disagreement (NOD) with the December 1989 decision. In March 1990, the veteran testified at a hearing that he suffered from migraine headaches two to three times a month and that the headaches lasted for three to four days. An April 1990 VA examination report showed history of migraine headaches two to three times a month of two to three days' duration. A May 1990 examination report showed an assessment of migraine headaches, "usually associated with severe vomiting". The examiner noted the headaches occurred once or twice a month and lasted two to three days and left the veteran "completely prostrated" at home. VA progress notes dated in October 1992 showed an assessment of migraine headaches "in remission". Ultimately on appeal, (after more than one remand) the BVA affirmed the 10% evaluation for migraine headaches which was effective from discharge from active service.

Left foot plantar fasciitis: The veteran was granted service connection for his left foot condition and assigned a noncompensable evaluation in a September 1988 rating decision. In November 1988, he filed an NOD with the evaluation. A May 1989 rating decision increased the veteran's evaluation to 10%. An April 1990 VA compensation and pension examination report showed a diagnosis of left foot plantar fasciitis with a history of recurrences of pain five to six times a month. A report from an April 1990 examination by a private orthopedist showed: "Left foot: Sensation intact, tender over the medial plantar surface . . . [;and] pes planus and mild heel valgus of less than five degrees." The examiner noted an impression of left foot plantar fasciitis and reported the veteran's history of "frequent" heel pain that was "worse with activities."

Right leg varicose veins: The RO first denied service connection for right leg varicose veins in April 1993. In a statement dated May 21, 1993, on a VA Form 1-646, the veteran's representative objected to the denial of service connection for the right leg varicose veins. A disagreement with the denial of service connection for the left leg (apparently a typographical error) was filed by the veteran and dated June 25, 1993. No statement of the case (SOC) was sent. A May 1994 BVA decision remanded the issue for development. The RO then sent an April 1995 supplemental statement of the case (SSOC) which addressed this issue. A substantive appeal, or VA form 9 was never filed by the veteran. The BVA subsequently determined it had no jurisdiction over the issue.

Right testicle condition: After remand from the BVA, the RO in December 1992, granted service connection for a right testicle condition and assigned a 0% disability rating, effective from November 7, 1989. The veteran filed an NOD with the evaluation. The RO issued an SSOC as to the right testicle condition following a denial of an increased rating in April 1995. The issue in the SSOC was framed as an "creased evaluation" for service-connected residuals of surgery to the right testicle. A substantive appeal was never received.

ANALYSIS: Evaluating migraine headaches: The veteran argued that evidence dating from the time of the original claim showed a greater frequency of migraine headaches, and thus warranted a higher disability rating for at least part of the period from 1988-94. The veteran contended that he was entitled to a rating based on his condition at the time that his claim was presented in 1989. The Court stated that the ruling in Francisco v. Brown, 7 Vet. App. 55, 58 (1994) that 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 importance" was "not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability." The Court noted that "at the time of an initial rating 'separate ratings can be assigned for separate periods of time based on facts found', a practice known as 'staged' ratings." The Court examined the evidence pertaining to migraine headaches and after reviewing the rating schedule determined that the veteran's "symptomatology would permit a 30% rating for at least the time period between June 1988 and May 1990 because the prostrating nature of the attacks had already been established by the 10% rating assigned in May 1989, effective April 1988." The Court remanded this claim to reconsider the evaluation consistent with its analysis. On remand, according to the Court, the BVA should provide for a current neurological evaluation, with all pertinent medical records made available to the examiner, "to assess the current frequency and intensity of the veteran's migraine attacks and to provide an opinion as to their frequency and intensity from May 1990 to present."

Left foot plantar fasciitis: The BVA rated the left foot plantar fasciitis by analogy under diagnostic code (DC) 5277, for "[w]eak foot, bilateral", which provides for a minimum rating of 10%. The Court noted that the BVA had also pointed out that another diagnostic code, that for "[f]oot injuries, other" could have been applied (DC 5284). The BVA also described 38 CFR § 4.40, which relates to functional loss due to inflammation or damage to parts of the exoskeletal system, and 38 CFR § 4.45, which relates to impairment to the joints. According to the Court, the BVA did not explain why these regulations were not applied. The CVA found that the diagnosis of foot pain which was "worse with activities" was evidence of pain on movement and functional disability due to pain that requires explicit consideration under sections 4.40 and 4.45. The Court remanded for readjudication supported by adequate reasons or bases concerning the application of those regulations.

Right leg varicose veins: the 646, filed by his representative, was in fact his substantive appeal. The Court held that the VA form 646, filed by the veteran's representative, was actually the NOD with the April 1993 RO denial of service connection for the right leg varicose veins and not a substantive appeal. As for the June 1993 statement being a substantive appeal, the Court pointed out that no SOC had yet been filed. The Court found that it was not a substantive appeal, but rather appeared to be a duplicate NOD. This finding was based on four reasons. First, the statement referenced the RO's letter which transmitted the April 1993 decision. Second, it expressed disagreement with the denial of service connection in the April 1993 decision. Third, the statement ended with a request that the RO send the veteran a statement of the case, which procedurally precedes the filing of the substantive appeal. Fourth, in its "Written Brief Presentation," dated December 5, 1995, the American Legion (the veteran's representative) did not list the claim as one of the questions at issue before the BVA. This suggests (but is not conclusive) that the veteran's representative did not believe that a substantive appeal had been filed as to the right leg varicose veins claim. Thus, the court held the BVA did not err when it decided this issue was no longer on appeal. The Court also suggested that the letter which is attached to the SOC and SSOCs should be changed to refer to the filing of a substantive appeal rather than of a Form 9, on which a substantive appeal may, but need not be, filed.

Right testicle condition: The Court found that the veteran had never received an SOC as to the issue of evaluation for the right testicle. The Court found that the SSOC "mistakenly treated the right testicle claim as one for an 'creased evaluation for service[-]connected . . . residuals of surgery to right testicle'" instead of "as a disagreement with the original rating awarded, which is what it was." Noting that the veteran had never received an SOC as to the issue of evaluation for the right testicle, the Court remanded the issue to the BVA for appropriate procedural compliance.

Judge Holdaway, concurring and dissenting in part, noted that the "SSOC clearly placed the appellant on reasonable notice of the denial of a compensable rating. The majority requires a degree of linguistic precision in the SSOC that is simply not required by statute or regulation."

IMPACT ON DECISIONMAKERS: This opinion is consistent with existing procedures relating to original claims. Decision makers are reminded that when evaluating an original claim for service connection, several evaluations may be warranted. In the event that a higher evaluation is followed by a lower evaluation, the application of 38 CFR § 3.105(e) is not for application, when evaluating an original grant of service connection.

When an NOD is filed with the evaluation on an original grant of service connection, RBA correctly frames the issue as "evaluation of service connected disability." If dictating or otherwise typing the issue in the case, continue to frame the issue as "evaluation of" and not "increased evaluation of" service connected disability.

When evaluating a condition under diagnostic codes relating to the musculoskeletal system, consider whether 38 CFR §§ 4.40 and 4.45 should be applied, particularly if an examination shows that the condition is "worse with activity" or contains words to that effect. In making this determination, General Counsel Precedent Opinion 9-98, Multiple Ratings for Musculoskeletal Disability and Applicability of 38 CFR § 4.40, 4.45, and 4.59, and General Counsel Precedent Opinion 36-97, Applicability of 38 CFR §§ 4.40 and 4.45 and 3.321(b)(1) in Rating Disability Under Diagnostic Code 5293 (Intervertebral Disc Syndrome) should be reviewed and applied if warranted.

RECOMMENDED VBA ACTION(S): This case should be provided to training coordinators as it may be a helpful tool when training how to evaluate original claims for service connection.

ACTION BY DIRECTOR, C&P SERVICE:

Approved?

_X_ ___ ______________/s/___________________ 3/23/99

Yes No Robert J. Epley Date