[DECISION ASSESSMENT DOCUMENT]{.underline}

[DOCKET NO.]{.underline}: 96-947 [ACTIVITY]{.underline}: RATING

[NAME]{.underline}: Fenderson v. West

[ISSUE(S)]{.underline}: Evaluating disability levels; Application of 38
CFR §§ 4.40 and 4.45; "Staged" ratings

[ACTION BY COURT]{.underline}: Remand/Affirmance [DECISION
DATE]{.underline}: 1-20-99

[FACTS]{.underline}: 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
"\[i\]creased evaluation" for service-connected residuals of surgery to
the right testicle. A substantive appeal was never received.

[ANALYSIS]{.underline}: **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 '\[i\]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]{.underline}: 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)]{.underline}: 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]{.underline}:

[Approved]{.underline}?

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[3/23/99]{.underline}

Yes No Robert J. Epley Date