Citation Nr: 0306807 Decision Date: 04/09/03 Archive Date: 04/14/03 DOCKET NO. 00-14 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to a compensable rating for bilateral pes planus prior to June 1, 1999. 2. Entitlement to a rating in excess of 10 percent for bilateral pes planus from June 1, 1999. [The issue of service connection for Post-traumatic Stress Disorder (PTSD) will be the subject of a later Board of Veterans' Appeals (Board) decision by a panel, including both Veterans Law Judges who have conducted hearings on that issue.] REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W.H. Donnelly, Associate Counsel INTRODUCTION The appellant is a veteran who had active service from December 1960 to December 1963. This matter comes before the Board on appeal from a February 2000 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for bilateral pes planus, rated noncompensable, effective from January 9, 1992. An August 2001 Decision Review Officer decision assigned a staged 10 percent rating for bilateral pes planus effective from June 1, 1999 based on a difference of opinion. FINDINGS OF FACT 1. Prior to June 1, 1999, the veteran's bilateral pes planus was no more than mild in degree. 2. From June 1, 1999, the bilateral pes planus is reasonably shown to be severe. CONCLUSIONS OF LAW 1. A compensable rating for pes planus is not warranted prior to June 1, 1999. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § , 4.71a, Code 5276 (2002). 2. A 30 percent rating is warranted for bilateral pes planus from June 1, 1999. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § , 4.71a, Code 5276 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA); codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107. Regulations implementing the VCAA have now been promulgated. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board finds that there has been substantial compliance with the mandates of the VCAA and implementing regulations. The claim has been considered on the merits. The record includes service medical records, VA treatment records, private medical records, and VA examination reports. The appellant was notified of the applicable laws and regulations. The rating decisions, the statement of the case, and the supplemental statements of the case have informed him what he needs to establish entitlement to the benefit sought and what evidence VA has obtained. He was notified of the enactment of the VCAA in March 2001 correspondence. The correspondence specifically informed him of his and VA's relative responsibilities in obtaining evidence. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Factual Background Service medical records reveal that on examination for enlistment in December 1960, no defects of the feet were noted. In the veteran's report of medical history, asymptomatic second degree bilateral pes planus was noted. In July 1962, the veteran complained of heel pain. Third degree pes planus was diagnosed, and arch supports were prescribed. On October 1963 separation examination, asymptomatic bilateral second degree pes planus was noted. VA treatment records from February 1984 to November 1995 reveal no treatment for or complaints related to pes planus. Private medical records from November 1972 to January 1990 note complaints of pain from bilateral hallux valgus and arthritic bunions. Surgery was recommended for the bunions. On September 1995 VA examination, bilateral flat feet with mild hallux valgus was diagnosed. Shaved bunions were noted on x-ray. On June 1, 1999 VA examination, the veteran reported that he developed severe foot pain in the Army. He has had pain since then. He had bunions removed in 1972 and 1980. On examination, there was marked pes planus of the left foot, arches were tender bilaterally. VA treatment records from January 2000 to July 2001 reveal no complaints of or treatment related to pes planus. The veteran did report on several occasions that he walked for exercise; and walking was also recommended by doctors as part of a weight loss program. Analysis Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the issue involves the assignment of an initial rating for a disability following the award of service connection for disability, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied. Fenderson v. West, 12 Vet. App. 119 (1999). Here, the veteran's bilateral pes planus has been assigned "staged ratings" by the RO, and both stages are before the Board. Pes planus is rated under Code 5276, which provides that pronounced bilateral pes planus, with marked pronation, extreme tenderness of the plantar surfaces, marked inward displacement and severe spasm of the tendo Achilles, and no improvement with orthotics, is rated 50 percent disabling. Severe bilateral pes planus, with objective evidence of marked deformity, accentuated pain on manipulation or use, swelling on use, and characteristic callosities is rated 30 percent. Moderate pes planus, with weight bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet is rated 10 percent. 38 C.F.R. § 4.71a. Prior to June 1, 1999, there are no objective findings of pain or other symptoms related to bilateral pes planus. The condition was diagnosed on September 1995 examination, and in service medical records, but no treatment for pes planus was reported during that period, and functional impairment due to pes planus was not shown. The veteran was treated for bunions and hallux valgus, which were described as "mild" by a VA examiner. A private examiner noted that the veteran had "some" pain, and that treatment might be required in the future. Because the bilateral foot disorder was described as mild, and because treatment records show only one incident of complaints of foot problems, a noncompensable rating is warranted for the period prior to June 1, 1999. The veteran's bilateral pes planus was indeed not shown to be more than mild in degree. On June 1, 1999 VA examination, the pes planus appeared to have increased in severity. Left foot pes planus was described as marked. There was bilateral arch tenderness. The finding of marked deformity along with the clinical finding of bilateral arch tenderness (but with no swelling, characteristic callosities) establishes that the disability picture presented by the pes planus does not satisfy, but approximates one of severe pes planus. In those circumstances, a 30 percent rating is warranted for the pes planus. 38 C.F.R. § 4.7. ORDER A compensable rating for bilateral pes planus prior to June 1, 1999, is denied. A 30 percent rating is granted for bilateral pes planus from June 1, 1999. ____________________________________________ GEORGE R. SENYK 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.