Citation Nr: 0307016 Decision Date: 04/11/03 Archive Date: 04/14/03 DOCKET NO. 02-10 750 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, DC THE ISSUES 1. Entitlement to an effective date earlier than May 3, 1995, for the award of service connection for bilateral pes planus. 2. The propriety of the ratings assigned following the grant of service connection for bilateral pes planus: 30 percent from May 3, 1995, and 50 percent from February 28, 2002. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD C. Bryant, Associate Counsel INTRODUCTION The veteran had active military service from October 1968 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2001 rating decision in which the RO granted service connection and assigned an initial rating of 30 percent for bilateral pes planus, effective May 3, 1995. The veteran, contending his service- connected bilateral pes planus merited an initial rating in excess of 30 percent and an effective date earlier than May 3, 1995, filed a notice of disagreement in February 2002. In June 2002, the RO awarded a 50 percent rating for the veteran's service-connected bilateral pes planus, February 28, 2002. A statement of the case (SOC) was issued in June 2002. The veteran submitted a substantive appeal in July 2002, and requested a Board hearing. In December 2002, a Board hearing was held in Washington, D.C., before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Inasmuch as this claim involves disagreement with the initial rating assigned at the time of the grant of service connection, the Board has characterized the issue in accordance with Fenderson v. West, 12 Vet. App. 119, 126 (1999). The RO increased the disability rating assigned for pes planus during the pendency of the appeal. However, as a higher evaluation is available this condition at each stage in question (from May 3, 1995, and from February 28, 2002), the claim for higher evaluations remains viable on appeal. Id; AB v. Brown, 6 Vet. App. 35, 38 (1993). A report of contact dated in August 2001 reflects that, via telephone, the veteran raised an informal claim of entitlement to service connection for a left ankle disorder secondary to service-connected bilateral foot disability. However, as this issue has not been adjudicated by the RO, and is not inextricably intertwined with any issue on appeal (see Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)), it is referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development action needed to render a fair decision on the claims on appeal has been accomplished. 2. The veteran filed an initial claim for service connection for bilateral pes planus on May 3, 1995; there is no evidence to establish any earlier claim for bilateral pes planus. 3. On August 7, 2001, the RO awarded service connection for bilateral pes planus, effective May 3, 1995; the basis for the award was service medical evidence establishing that the veteran was discharged from service due to a bilateral foot disability. 4. Although the veteran has a number of other service- connected and nonservice-connected foot conditions, the evidence reflects, since at least the May 3, 1995 effective date of the grant of service connection for bilateral pes planus, objective and subjective evidence of foot disability comparable to extreme tenderness of plantar surfaces of the feet. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than May 3, 1995, for the award pf service connection for bilateral pes planus, have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.150, 3.151, 3.155, 3.159, 3.400 (2002). 2. Affording the veteran benefit of the doubt, the criteria for a 50 percent evaluation for bilateral pes planus from May 3, 1995, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5276 (2002). 3. The criteria for a rating in excess of 50 percent for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.71a (2002) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board notes that, during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West Supp. 2002). This liberalizing law is applicable to this appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). To implement the provisions of the law, the VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002)). The VCAA and its implementing regulations essentially eliminate the concept of the well-grounded claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102. They also include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of the VA to notify a claimant of the information and evidence needed to substantiate a claim (38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)), as well as the duty to notify the claimant what evidence will be obtained by whom (38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(b)). In addition, they define the obligation of the VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the duties imposed by the VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. As evidenced by the March 2002 RO notification letter and the June 2002 statement of the case, the veteran and his representative have been furnished the pertinent laws and regulations governing the claims and the reasons for the denial of the veteran's claims. Specifically, the June 2002 statement of the case notified the veteran of the regulations pertinent to his earlier effective date claim and the diagnostic codes pertinent to the rating assignment for bilateral pes planus. Hence, the Board finds that they have been given notice of the information and evidence needed to substantiate the claims and, as evidenced by the March 2002 RO letter soliciting information and/or evidence, have been afforded opportunities to submit such information and evidence. The Board also finds that the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the VA, has been met. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159). By telephonic contact in August 2001, the RO informed the veteran that he should provide any evidence showing that he submitted a claim for service connection of his bilateral foot condition earlier than May 1995. In a March 2002 letter, the RO informed the veteran that he should also provide evidence that his bilateral pes planus had increased in severity, the best evidence being records showing treatment for the disability prior to the date he submitted his claim. The RO requested that the veteran identify sources of, and pertinent information concerning, VA and private medical treatment for bilateral pes planus. The RO indicated that it would obtain VA records directly, and would attempt to obtain private treatment records upon the veteran's authorization. It noted, however, that the ultimate responsibility for submitting private medical evidence rested with the veteran. The Board also finds that all necessary development has been accomplished. The veteran has undergone four VA examinations, in September 1995, April 2001, August 2001, and May 2002, the reports of which are of record. The RO obtained pertinent treatment records from the Washington VAMC, the only identified post-service source of VA medical treatment, as well as the District of Columbia (D.C.) General Hospital. By telephonic contact of January 2001, the RO informed the veteran that it would assist in obtaining copies of private treatment records from Dr. M. Mintzer, and that a VA examination would be scheduled if private medical records were not sufficient to determine the veteran's level of foot disability. The RO issued a letter requesting records from Dr. M. Mintzer in February 2001 and, as no response was received, issued a follow-up letter March 2001. The veteran was duly notified that Dr. M. Mintzer had failed to adequately respond to RO requests for treatment records, and that he was ultimately responsible for ensuring the RO received the private treatment records. The record does not otherwise indicate any additional existing evidence that is necessary for a fair adjudication of any of the claims on appeal that has not been accomplished. Under these circumstances, the Board finds that adjudication of the claims on appeal at this juncture, without directing or accomplishing any additional notification and or development action, poses no risk of prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The claims are ready to be considered on the merits. I. Factual Background On May 3, 1995, the veteran submitted a claim for service connection of a bilateral foot condition. He identified the District of Columbia (D.C.) General Hospital as a source of relevant private medical treatment following his discharge from service. The veteran submitted copies of D.C. General Hospital records in July 1995. According to the records, in April 1991, the veteran presented for podiatric treatment of painful corns and calluses of the feet. He admitted to self-treatment by shaving corns and calluses. The private podiatrist observed diffuse plantar callosities on the soles and heels, bilaterally. The private podiatrist diagnosed hammertoe deformities and plantar keratoses. In October 1993, the veteran was treated for painful calluses of the feet. The private podiatrist observed multiple hyperkeratotic lesions beneath the plantargrade metatarsals with nucleated lesions, and keratoses overlying the digits of the feet. He was diagnosed with, among other things, hammertoe deformity. There were copies of notations indicating podiatric treatment in June 1971, March 1973, October 1973, November 1973, December 1973, and January 1974. In July 1995, the RO requested that D.C. General Hospital provide copies of the veteran's treatment records dated from 1969 to date. In response, D.C. General Hospital submitted treatment records dated from January 1970 to February 1986. According to the records, in October 1979, the veteran was treated for, and diagnosed with, tender, bilateral plantar warts. In January 1981, a private physician noted large callous formations on the right heel, and observed that tenderness was present. The veteran was unable to bear weight without pain. An undated evaluation report provided a medical history of a long-standing foot problem, callus formation. The veteran complained of foot pain. The private physician observed hyperkeratotic callous formation on the plantar surfaces of both feet, with no active inflammation. The veteran was diagnosed with callus. In March 1984, the veteran was seen in the emergency room for, inter alia, foot ache. A VA examination was provided in September 1995. The VA examiner observed hallux valgus of both great toes, and hammertoe deformity of all toes. He reported extensive plaques of hyperkeratosis involving the soles of both feet, worse on both heels. The VA examiner noted that the veteran was very tender to palpation of both heels. X-ray examination of the feet revealed bilateral hallux valgus, bilateral hammertoe deformity, bilateral inferior calcaneal spurs, and bilateral talar beaks. There was no radiographic finding of fracture or dislocation. The VA examiner diagnosed, in pertinent part, extensive hyperkeratosis, hammertoe deformities, hallux valgus, and probable calcaneal spurs. By telephone contact of January 2001, the veteran informed the RO that a private physician, M. Mintzer, M.D, treated him. In February 2001, the veteran submitted an August 1999 letter from Dr. Mintzer, stating that the veteran had been a patient since April 1998. He stated that the veteran's feet would "get bad" to the degree that "he must walk on his heels with a cane." Dr. Mintzer listed the veteran's chief complaints as severe hammertoes, extremely painful tyloma metatarsal heads, bilaterally; and extreme thickening in the heel area, bilaterally. He concluded that, in his forty years of podiatry practice, he could not remember ever seeing a patient with such a severe foot problem at the veteran's age bracket. In response to the RO's request for records from the office of Dr. Mintzer, an unsigned statement was received indicating that the veteran was treated from April 1998 to February 2001. It also indicated that the veteran presented with onychomycosis, multiple hammertoe deformities, plantar flexed metatarsals that resulted in multiple hyperkeratotic lesions of the 5th metatarsals bilaterally. The unsigned statement noted that medical treatment included palliative care, and debridement of the nails and lesions. A VA examination was provided in April 2001. The veteran described repeated treatment for multiple recurring blisters and "hard skin" of the feet. The veteran stated that he was treated by D.C. General Hospital podiatrist while an employee of the hospital. The veteran reported that he was currently treated by a private podiatrist who treated the condition with trimming of the nails, calluses and hard skin. The veteran complained of difficulty walking as weight bearing on the "hard skin" of the heels caused pain. The VA examiner observed calluses formed over the metatarsal bones of both feet. The skin of the soles was hyperkeratotic, specifically on the heels. The VA examiner noted obviously flat feet. There was a callous on the dorsal aspect of the left second toe. The VA examiner diagnosed multiple calluses and hyperkeratotic plaques on both soles, tinea pedis, and flat feet. Another VA examination was provided in August 2001. The veteran complained that his feet were "getting worse." He complained of persistent bilateral plantar foot pain, and that he occasionally missed work due to pain. The VA examiner observed bilateral pes planus, bilateral slight hallux valgus, bilateral hammering of the lateral four toes, and multiple tender calluses. The VA examiner noted tenderness to palpation over all of the plantar surface of both feet, as well as calloused areas. The veteran could stand on his heels to a slight extent, and could not stand on his toes. X-ray examination revealed bilateral calcaneal spur, mild degenerative changes of the first metatarsal phalangeal joint, bilaterally. The VA examiner diagnosed persistent bilateral plantar foot pain, and pes planus. Along with his February 2002 notice of disagreement, the veteran submitted VA medical treatment records from the Washington VA Medical Center (VAMC) dated in January 2002. According to a January 2002 treatment report, the veteran appeared for his first visit to the Washington VAMC. The veteran complained of chronic pain in both feet radiating to his legs and feet. The VA physician observed flat feet, early hammertoe formation, and several painful callous formations on the bottom of the veteran's feet. The VA physician diagnosed, in pertinent part, pes planus, chronic foot pain. The veteran was referred to a podiatrist and was seen later the same month. According to the VA podiatrist's report, the veteran's feet were intact neurologically. She observed a pes planus foot type with hammertoes, mild hallux abducto valgus deformity, and keratosis located along the heels. X-ray examination revealed dorsal lisfranc's joint and plantar calcaneus. The VA podiatrist diagnosed osteoarthritis, pes planus with equinus and hammertoe deformity. The VA podiatrist recommended semirigid arch support, rearfoot in neutral position, and cushion topcover and aperture padding for calluses. In March 2002, the RO received a letter from J. Mintzer, M.D., identifying the veteran as a patient for the prior four years. According to the March 2002 letter, the veteran was treated by Dr. J. Mintzer and Dr. M. Mintzer. Dr. J. Mintzer summarized treatment notes from April 1998 to March 2002. The veteran was first seen in April 1998 presenting with a chief complaint of painful thick nails and painful thick lesions on the soles and digits of both feet. The deformities affected the veteran's ability to walk comfortably. The veteran's bilateral foot disorder was treated by debridement and protective dressing and padding. The veteran returned from June 1998 to March 2002 with the same symptoms, and the same treatment was provided. Dr. J. Mintzer agreed with the January 2002 VA podiatry report (discussed above) and that the veteran was suffering a great deal on ambulation. In April 2002, the veteran telephoned the RO regarding the status of his claim. The RO confirmed that it had received evidence from Dr. J. Mintzer and Washington VAMC treatment records. The veteran indicated that he was fitted with orthotics at the Washington VAMC in February 2002. The RO subsequently requested updated VA treatment records. The February 2002 VA records obtained corroborated the veteran's statement. In May 2002, the veteran underwent VA examination of his feet. The veteran complained of severe bilateral foot pain of thirty years duration. The veteran reported taking sick days off due to foot pain. The VA examiner observed that the veteran walked with a cane due to pain in the feet. Examination of the right foot and the left foot revealed pes planus with depression of the arch on weight bearing. The VA examiner observed calluses, nucleated keratosis, flexible hammertoes, and limitation of the subtalar joint motion, bilaterally. The veteran exhibited pain on palpation of the talar navicular joint, bilaterally, and pain on palpation of both heels consistent with plantar fasciitis. The VA examiner diagnosed pes planus bilaterally, hammertoes with keratosis, and heel spurs with plantar fasciitis bilaterally. During his December 2002 Board hearing, the veteran complained of inability to walk fast, jog, or stand for long periods and pain when using stairs. The veteran testified that his symptoms had endured since service. The veteran reported using orthotics and a cane to aid ambulation. He reported using approximately one-half day per month for sick leave due to his bilateral foot disability, including hospital visits for treatment. The veteran testified that he was never informed upon separation that he could file a claim for VA compensation. II. Analysis A. Earlier Effective Date The veteran asserts that earlier effective date for the grant of service connection for bilateral pes planus is in order. Specifically, he maintains that he experienced the disability at the time he was discharged from service in July 1969, and therefore an effective date the day following the date of his discharge is warranted. The Board finds, however, that neither the assertions of veteran and his representative, nor the medical evidence associated with the record, provide a basis for the assignment of an effective date for the award of service connection for bilateral pes planus earlier than May 3, 1995. The governing law and regulation clearly state that the effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. §§ 5110(a),(b); 38 C.F.R. § 3.400(b)(2). Any communication from or action by a veteran indicating an intent to apply for a benefit under laws administered by VA may be considered an informal claim. 38 C.F.R. § 3.155(a). When determining the effective date of an award of compensation benefits, the Board is required to review all the communications in the file that could be interpreted to be a formal or informal claim for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In the instant case, there is no evidence that the veteran filed a claim for service connection for bilateral pes planus within one year after his separation from service. The veteran admitted that he did not file a service connection claim for a bilateral foot disorder until May 1995, and the record corroborates the veteran's admission. While the veteran argues that he was never notified of his rights to VA benefits within the year after his separation from service and, therefore, the applicability of the regulation should be waived, this argument is without merit, and has no bearing on the issue on appeal. In this regard, the Board emphasizes, that regulations are binding on all who seek to come within their sphere, "regardless of actual knowledge of what is in the regulations or of the hardship resulting from innocent ignorance. See Morris v. Derwinski, 1 Vet. App. 260 (1990) (citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947)). In this case, the veteran filed an initial claim for service connection service connection for bilateral pes planus on May 3, 1995, and the RO assigned May 3, 1995 as the effective date of the grant of service connection for that condition. Pursuant to the applicable law and regulation, and in view of the facts of this case, there is no legal basis for the assignment of any effective date earlier than May 3, 1995 for the grant of service connection for the condition in question. The Board is sympathetic to the veteran's assertions; however, the governing law and regulations are very specific, and the Board is bound by them. See 38 U.S.C.A. § 7104(c). For all the foregoing reasons, the Board concludes that claim for an effective date earlier than May 3, 1995 for the award of service connection for bilateral pes planus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable to this claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). B. Evaluation of Bilateral Pes Planus In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can practically be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, the Fenderson decision noted an important distinction between an appeal involving the veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 126. In this case, the RO has issued a statement of the case that does not explicitly reflect consideration of the propriety of the initial rating, or include discussion of whether "staged rating" would be appropriate in the veteran's case. However, the Board does not consider it necessary to remand this claim for the RO to issue such a statement of the case. This is because the claims file reflects consideration of additional evidence in light of the applicable rating criteria at various points during the appeal, resulting in the decisions to grant a 30 percent evaluation from the date of the claim, and a 50 percent evaluation from February 28, 2002. Thus, the RO effectively considered the appropriateness of its initial evaluation under the applicable rating criteria in conjunction with the submission of additional evidence at various times during the pendency of the appeal. The Board considers this to be tantamount to a determination of whether "staged rating" is appropriate; thus, the Board finds that another remand of any of the issues on appeal would not be productive, as it would not produce a markedly different analysis on the RO's part, or give rise to markedly different arguments on the veteran's part. Bilateral pes planus is rated in accordance with 38 C.F.R. Part 4, Diagnostic Code 5276. Under that diagnostic code, a 30 percent evaluation is warranted for severe bilateral pes planus and requires objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. A 50 percent evaluation is warranted for pronounced bilateral pes planus and requires marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. At the outset, the Board notes that, in addition to bilateral pes planus and service connected tinea pedis and hyperkeratosis (the latter of which are skin conditions not here at issue), the veteran has a number of other conditions affecting his feet-namely, degenerative joint disease, hallux valgus deformities, calcaneal spurs, plantar fasciitis, and hammer toes. Although these disabilities have not neither been service-connected nor in any way related to the veteran's service-connected pes planus, the Board notes that the record also does not include competent evidence that that the symptoms of service-connected bilateral pes planus and any other foot disability can be medically distinguished. Hence, the Board will give the veteran the benefit-of-the- doubt and attribute all his foot symptoms to his bilateral pes planus. Mittleider v. Brown, 11 Vet. App. 181 (1998). The medical evidence reflects that the veteran's bilateral pes planus has been manifested by objective and subjective evidence of disability comparable to extreme tenderness of plantar surfaces of the feet. Resolving all reasonable doubt in the veteran's favor, the Board finds these findings support the criteria for a 50 percent rating, the maximum rating available under Diagnostic Code 5276, for the entire rating period in question. The objective medical evidence consistently weight-bearing, palpable pain of the plantar surfaces of the feet due largely to plantar keratoses, especially in the area of the veteran's heels. As early as April 1991, the veteran demonstrated plantar keratoses, along with subjective symptoms of pain. In January 1981, a private physician noted large, tender callous formations on the right heel, and observed the veteran to be unable to bear weight without pain. According to the September 1995 VA examination report, the veteran had "extensive plaques of hyperkeratosis . . . worse on both heels" and the heels were "very tender to palpation." By letter of August 1999, Dr. M. Mintzer indicated that the veteran had to use a cane in order to walk on his heels due to such heel problems and suffered foot problems to a severe degree unlike any he had seen in patients of similar age. Again, in August 2001, a VA examiner noted tenderness to palpation over all the plantar surface of the feet, as well as calloused areas. Finally, in May 2002, a VA examiner noted pain on palpation of the veteran's heels consistent with plantar fasciitis. Affording the veteran the benefit of the doubt by attributing the veteran's symptoms to his service-connected pes planus, the Board determines that since the May 3, 1995 effective date of the grant of service connection, he has overall foot disability due to extreme tenderness that is consistent with the criteria for a 50 percent evaluation under Diagnostic Code 5276. See 38 C.F.R. § 4.7. However, no higher evaluation is assignable at any stage since the effective date of the grant of service connection for pes planus. As there is a specific diagnostic code to evaluate the veteran's current condition, evaluation under any other diagnostic code does not appear appropriate. See 38 C.F.R. 4.20. However, even if consideration of an alternative diagnostic code was appropriate, the Board finds that such consideration does not provide a basis for a higher evaluation in this case. Diagnostic Code 5284, pursuant to which foot injuries are evaluated, provides only a maximum 30 percent evaluation. The only diagnostic code pertaining to the feet other than Diagnostic Code 5276 that provides for an evaluation in excess of 30 percent evaluation is Diagnostic Code 5278, pertaining to claw foot deformity. The maximum evaluation available under Diagnostic Code 5278 is 50 percent. However, as discussed above, the Board finds that a 50 percent evaluation is warranted under Diagnostic Code 5276 for the entire rating period in question, so no further benefit is available under Diagnostic Code 5278. Additionally, the record does not establish that, at any point since May 3, 1995, the schedular criteria has been inadequate to evaluate the veteran's service-connected bilateral pes planus, so as to warrant assignment of a higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). In this regard, the Board notes that there is no showing that the disability under consideration has resulted in marked interference with employment. The Board acknowledges the veteran's statements concerning difficulty standing for long periods, the occasional use of sick leave for medical appointments, and his use of orthotics and a cane. However, even accepting such assertions as true, the Board would point out that some interference with employment is contemplated in the current 50 percent evaluation (the maximum schedular rating allowed under the applicable diagnostic code); more than that, however, simply is not shown. In addition, there is no showing that bilateral pes planus has necessitated frequent periods of hospitalization, or that the disability has otherwise rendered impractical the application of the regular schedular standards. In the absence of evidence such factors, the Board finds that the criteria for submission for assignment of an extra-schedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, a 50 percent, but no higher, evaluation for pes planus is warranted from the effective date of the grant of service connection for that condition. ORDER An effective date earlier than May 3, 1995, for the award of service connection for bilateral pes planus is denied. An initial 50 percent evaluation for bilateral pes planus, from May 3, 1995, is granted, subject to the law and regulations governing the payment of monetary benefits. A rating in excess of 50 percent for bilateral pes planus is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.