Citation Nr: 0100591	
Decision Date: 01/10/01    Archive Date: 01/17/01

DOCKET NO.  99-21 023	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, 
Arizona


THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for 
bilateral pes planus.

2.  Entitlement to an earlier effective date than November 
12, 1998, for a 10 percent evaluation for bilateral pes 
planus.  


REPRESENTATION

Appellant represented by:	Arizona Veterans Service 
Commission


ATTORNEY FOR THE BOARD

K. K. Enferadi, Associate Counsel



INTRODUCTION

This veteran had active service from December 1943 to 
February 1946.  This matter comes to the Board of Veterans' 
Appeals (Board) from a February 1999 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) that 
continued the zero percent rating for bilateral pes planus.  
During the course of this appeal, the RO granted a 10 percent 
evaluation effective from November 12, 1998.  The matter of 
entitlement to an earlier effective date than November 12, 
1998, for a 10 percent evaluation for bilateral pes planus is 
addressed in the Remand portion below.


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable decision 
of the veteran's appeal has been obtained by the RO.

2.  The veteran's bilateral pes planus is evidenced by no 
more than mild symptomatology, without ulcerations, 
deformity, or vascular changes.


CONCLUSION OF LAW

The schedular criteria for an evaluation in excess of 10 
percent for bilateral pes planus have not been met.  
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71, 
Diagnostic Code 5276 (2000).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Factual Background

Service connection for bilateral pes planus was granted in 
November 1946, at which time the RO assigned a 10 percent 
evaluation from February 1946.  In a rating decision dated in 
January 1951, the RO reduced the evaluation to zero percent 
based on no evidence of residual disability.  

In private outpatient medical records dated from November 
1997 to October 1998, the veteran complained of painful flat 
feet.  In November 1997, the veteran was treated for right 
foot pain in the first metatarsal phalangeal joint.  Some 
erythema was noted and extreme pain on range of motion was 
indicated.  Probable gout was assessed.  In April 1998, the 
veteran underwent arthroplasty and arthrotomy for hallux 
limitus and bone spurs.  

During VA examination dated in January 1999, the veteran 
complained of pain without swelling, heat, or redness.  On 
examination, the examiner noted that the veteran's feet were 
warm and dry without edema, tibial pulses were normal and 
equal without problems, and there was good capillary refill 
without vascular changes.  There was no evidence of any 
deformity.  The feet showed no calluses, ulcerations, 
clawfeet, or unusual footwear patterns.  The examiner noted a 
minor degree of pes planus bilaterally.  

The examiner was able to insert a pencil two and one-half 
centimeters on the right and one and one-half centimeter on 
the left.  There was no swelling or edema.  On weight bearing 
and nonweight bearing, alignment of the Achilles tendon 
showed no change.  There was no pain on motion of the 
Achilles tendon and no change or correction of the alignment 
with manipulation of the Achilles tendon.  There were no 
calluses and sensation of both feet was normal.  The 
diagnosis was pes planus, mild, bilateral, slightly worse on 
the right; probable slight degree of degenerative joint 
disease of the metatarsal arch bilaterally, probably mild.  
No deformities were noted.  

X-ray studies on the veteran's feet conducted in January 1999 
revealed a normal-appearing left foot and degenerative 
changes in the first metatarsal phalangeal joint on the 
right.  

In a September 1999 letter from a private podiatrist, it was 
noted that the veteran exhibited bilateral pes planus valgus, 
worse on the left than the right.  His tibia was medial to 
the hallux on weight bearing, and there was decreased 
inversion of the calcaneus on the heel raise test.  The 
physician stated that the veteran had significant weakness in 
the posterior tibial tendon and that x-ray evaluation 
revealed a decreased calcaneal inclination angle and 
increased talo declination angle.  The physician stated that 
there was a weight bearing line medial to the great toe worse 
on the left than the right with significant pain on 
ambulation or prolonged standing.  

II. Pertinent Law and Regulations

Disability evaluations are determined, as far as practicable, 
upon the average impairment of earning capacity attributable 
to specific injuries or combination of injuries coincident 
with military service.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 
(2000).  Each disability must be viewed in relation to its 
history with an emphasis placed on the limitation of activity 
imposed by that disability.  38 C.F.R. § 4.1.  The degrees of 
disability contemplated in the evaluative rating process are 
considered adequate to compensate for loss of working time 
due to exacerbation or illnesses proportionate to the 
severity of the several grades of disability.  38 C.F.R. 
§ 4.1.

Under 38 C.F.R. § 4.10 (2000), in cases of functional 
impairment, evaluations are to be based upon the lack of 
usefulness, and medical examiners must furnish a full 
description of the effects of the disability upon the 
veteran's ordinary activity; this requirement is in addition 
to the etiological, anatomical, pathological, and prognostic 
data required for ordinary medical classification.

In cases involving musculoskeletal disability, the elements 
to be considered include the ability to perform the normal 
working movements of the body with normal excursion, 
strength, speed, coordination, and endurance.  38 C.F.R. 
§ 4.40. 

Additional factors to be considered include the reduction in 
a joint's normal excursion of movement on different planes.  
38 C.F.R. § 4.45.  Factors such as less movement than normal, 
more movement than normal, weakened movement, incoordination, 
pain on movement, swelling, or instability, are also to be 
considered.  

Additionally, with any form of arthritis, painful motion is 
an important factor.  The involved joint should be tested for 
pain on both active and passive motion, while bearing weight 
and without, and if possible compared with the range of 
motion of the opposite, undamaged joint.  38 C.F.R. § 4.59 
(2000).

Where there is a question as to which of two evaluations 
applies to the veteran's disability, the higher evaluation 
will be assigned if the disability picture more nearly 
approximates the criteria required for that rating.  
Otherwise, the lower evaluation will be assigned.  38 C.F.R. 
§ 4.7 (2000).

Under Diagnostic Code 5276, to merit an evaluation of 
30 percent for bilateral acquired flatfoot (pes planus) is 
warranted where symptoms are severe and there is objective 
evidence of marked deformity (pronation, abduction, etc.), 
pain on manipulation and use accentuated, indication of 
swelling on use, characteristic callosities.  38 C.F.R. 
§ 4.71, Diagnostic Code 5276 (2000).  

Under Diagnostic Code 5276, to merit an evaluation of 
50 percent bilaterally for acquired flatfoot, which is the 
maximum rating available, the veteran must present evidence 
of pronounced symptomatology that includes extreme tenderness 
of the plantar surfaces of the feet, severe spasms of the 
tendo achillis on manipulation, or displacement not improved 
by orthopedic shoes or appliances. 
 
III. Analysis

This veteran contends that he is entitled to an increased 
evaluation of 30 percent for his bilateral pes planus because 
it is now severely disabling and causes him much pain.  
Although the regulations require a review of past medical 
history of a service-connected disability, they do not give 
past medical reports precedence over current examinations.  
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Under Diagnostic Code 5276, to warrant an evaluation of 
30 percent for bilateral acquired flatfoot (pes planus), 
there must be severe symptoms such as marked deformity 
(pronation, abduction, etc.), pain on manipulation and use, 
swelling, or callosities.  38 C.F.R. § 4.71, Diagnostic Code 
5276 (2000).  In this case, as noted above during the most 
recent VA examination, see Francisco at 55, the examiner 
reported overall normal feet.  Essentially, tibial pulses 
were normal, there were no vascular changes, deformity, 
calluses, ulcerations, clawfeet, or unusual footwear 
patterns, and the alignment of the Achilles tendon showed no 
change.  

The examiner noted a minor degree of pes planus bilaterally 
with no pain on motion of the Achilles tendon and no change 
of the alignment with manipulation of the Achilles tendon.  
Some mild degenerative joint disease was indicated on the 
right as confirmed by a contemporaneous x-ray study.  Thus, 
in light of such evidence, the Board notes that the veteran 
has not presented clinical data of impairment to the extent 
required under the relevant diagnostic code for the next 
higher rating of 30 percent for bilateral pes planus.  See 
supra 38 C.F.R. § 4.71, Diagnostic Code 5276.  

The Board does recognize the private podiatrist's report 
rendered in September 1999.   Nonetheless, the September 1999 
report does not provide clinical evidence of marked and 
severe symptomatology associated with the veteran's bilateral 
flatfeet.  While the veteran's complaints of pain on 
prolonged standing and on weightbearing are recognized, there 
are no objective data to substantiate the severity of 
symptoms required for a 30 percent evaluation pursuant to 
Diagnostic Code 5276.  See supra 38 C.F.R. § 4.71, Diagnostic 
Code 5276.  Overall, there is nothing to support marked 
deformity, such as pronation or abduction, pain on 
manipulation and/or use, swelling, or callosities.   Dr. W's 
comments largely reflected disagreement with the rating 
criteria and did not include findings sufficient to support 
an increased evaluation. 

Although the veteran is entitled to the benefit of the doubt 
where the evidence is in approximate balance, the benefit of 
the doubt doctrine is inapplicable where, as here, the 
preponderance of the evidence is against the claim for an 
evaluation in excess of 10 percent for bilateral pes planus.  
See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 

Moreover, the Board has considered the provisions relevant to 
functional musculoskeletal impairment.  However, on review of 
the most current clinical findings of record, the Board has 
determined that the objective evidence of record does not 
support an evaluation greater than the current 10 percent for 
bilateral pes planus.  See supra 38 C.F.R. §§  4.40, 4.45; 
4.59 (2000).


ORDER

Entitlement to an evaluation in excess of 10 percent for 
bilateral pes planus is denied.


REMAND

In October 1999, the veteran indicated his disagreement with 
the effective date of November 12, 1998, for the 10 percent 
evaluation of his bilateral pes planus granted in the 
September 1999 rating decision.  Thereafter, it was the RO's 
duty to issue a statement of the case (SOC) on that issue.  
38 U.S.C.A. § 7105(d) (West 1991); 38 C.F.R. § 19.28 (2000); 
see also Manlincon v. West, 12 Vet. App. 238 (1999)(holding 
that where the veteran has expressly stated his disagreement 
with a prior decision, the Board must remand this matter for 
issuance of an SOC).  

Accordingly, the appeal is remanded for the following action:

The RO should furnish to the veteran and 
his representative an SOC on the matter 
of entitlement to an earlier effective 
date than November 12, 1998 for the 
10 percent evaluation of bilateral pes 
planus.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded to 
the regional office.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board or by the United States Court of Appeals for Veterans 
Claims for additional development or other appropriate action 
must be handled in an expeditious manner.  See The Veterans' 
Benefits Improvements Act of 1994, Pub. L. No. 103-446, 
§ 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 
Supp. 2000) (Historical and Statutory Notes).  In addition, 
VBA's Adjudication Procedure Manual, M21-1, Part IV, directs 
the ROs to provide expeditious handling of all cases that 
have been remanded by the Board and the Court.  See M21-1, 
Part IV, paras. 8.44-8.45 and 38.02-38.03.



		
	John E. Ormond, Jr. 
Member, Board of Veterans' Appeals