Citation Nr: 0703406 Decision Date: 02/05/07 Archive Date: 02/14/07 DOCKET NO. 04-17 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a rating in excess of 30 percent for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Kang, Counsel INTRODUCTION The veteran served on active duty from December 1942 to March 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which granted an increased rating of 30 percent for service-connected pes planus. By correspondence dated January 25, 2007, the Board notified the veteran that his motion to advance his case on the docket had been granted. FINDING OF FACT Bilateral pes planus is not manifested by a pronounced disability with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achilles on manipulation, that is not improved by orthopedic shoes or appliances. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for bilateral pes planus are not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Code 5276 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) is applicable to this appeal. To implement the provisions of the law, the VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). The Act and implementing regulations provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. It also includes new notification provisions. In this case, the veteran's claim for an increased initial rating was received in May 2001. In correspondence dated in July 2003, he was notified of the provisions of the VCAA as they pertain to the issue of increased ratings. Clearly, from submissions by and on behalf of the veteran, he is fully conversant with the legal requirements in this case. Thus, the content of this letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken, examinations have been performed, and all available evidence has been obtained in this case. The veteran identified VA treatment records which the RO obtained. The appellant has not identified any additional evidence that could be obtained to substantiate the claim. In fact, in an October 2004 statement from the veteran, he indicated that he had no additional evidence to submit in support of his increased rating claim. Therefore, the Board is satisfied that VA has assisted the veteran in the development of his claim in accordance with applicable laws and regulations. Accordingly, the Board will address the merits of this claim. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which discussed the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Because this claim is being denied, any other notice requirements beyond those cited for service connection claims, are not applicable. As indicated above, there has been substantial compliance with all pertinent VA law and regulations, and to move forward with this claim would not cause any prejudice to the veteran. Analysis The veteran contends that a higher evaluation is warranted for his service-connected bilateral pes planus. The Board notes that the veteran increased rating claim was received in May 2001. Thereafter, the RO in its January 2003 rating action granted an increased rating of 30 percent, effective from May 21, 2001, the date of the increased rating claim. The disability is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5276. 527 6 Flatfoot, acquired: Pronounced; 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: Bilateral 50 Unilateral 30 Severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities: Bilateral 30 Unilateral 20 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2006) In evaluating the severity of a particular disability, it is essential to consider its history. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1, 4.2 (2006). 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55 (1994). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. at 202. Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Upon review of all of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. In this respect, the veteran's VA outpatient treatment records dated from 2001 to 2004 note treatment for hammertoe, metatarsalgia, callus formation and debridement, and onychoreduction but do not show treatment for bilateral pes planus beyond the issuance of orthopedic shoes and padding inserts. It has been consistently reported in the VA podiatry clinical records that the veteran received relief from the pad inserts for his pes planus disability. Complaints of pain were noted to be made in relation to hammertoe deformity with fat pad atrophy of the second digit noted, bilaterally. It was also noted that he suffers from diabetes mellitus, with some peripheral vascular complications. When the veteran underwent a VA examination in August 2003, the examiner characterized the bilateral pes planus as "moderate." He reported having pain in the feet, despite the use of extra depth shoes and orthodics, which offered some relief. There was no objective evidence of marked deformity, swelling on use, or characteristic callosities. There was evidence of pain on palpation of the ball of the foot and heel, bilaterally, but no evidence of spasm of the tendon or the Achilles on manipulation. On resting calcaneal stance position, there was evidence of moderate pronation with collapsed arch, bilaterally. With regard to the veteran's complaints of peripheral neuropathy, the examiner opined that this condition was secondary to diagnosed diabetes mellitus, not the bilateral pes planus disability. The examiner indicated that the veteran's bilateral pes planus was controlled with foot orthodics. An x-ray study of the right foot dated in August 2003 reflect mild to moderate bilateral pes planus deformity without significant change from the September 2001 X-ray study, which showed mild bilateral pes planus with plantar fascia calcifications. The diagnostic impression was mild to moderate bilateral pes planus, unchanged from September 2001. An x-ray study of the right foot dated in February 2004 showed mild posttraumatic/degenerative changes with no obvious fracture or extensive Charcot changes (neurological joint disease, the result of diabetic neuropathy) identified. X-ray study of the right ankle showed degenerative changes as described with plantar calcaneal spur. On VA feet examination in November 2004, the veteran complained of painful bilateral hammertoe deformities and pain in the plantar aspect of the forefoot, bilaterally. This pain extends into the digits of both feet and the heel. He noted aggravation of pain with weightbearing activities with sharp and throbbing pain in the ball of the foot and plantar aspect of the heel. He complained of fatigue and lack of endurance due to chronic pain in the plantar aspect of both feet. The veteran denied any joint disease flare up. He denied use of canes, crutches, and canes. He noted receiving pes planus and hammertoe relief over the years from use of extra depth/extra width shoe gear that provide increased accommodation in the toe box. The veteran reported recurrent calluses in the plantar aspect of both feet, as well as, limited ambulation due to foot pain. He indicated that his pedal symptoms adversely affected his daily living activities. The examiner noted mild lateral bowing of the tendo Achilles during weight bearing which was manually reducible in a non weight-bearing position. No spasm of the Achilles tendon was noted with manual manipulation, bilaterally. Plantar fascia was essentially asymptomatic with palpation, bilaterally. The Achilles tendon was asymptomatic with passive and active ankle joint range of motion with knee extended and flexed, bilaterally. Inversion of the subtalar joint was noted on toe rising, bilaterally. Muscle strength was 4/5 for all extrinsic dorsiflexors, plantarflexors, invertors, and evertors of the foot, bilaterally. Depression of the arch was not severe, bilaterally. There was no gross forefoot abduction noted with relaxed stance position, bilaterally. The diagnosis was bilateral pes planus deformity shown clinically and radiographically. The VA examiner reported difficulty in ascertaining to what percent and role each component of the findings played in his symptoms. The VA examiner indicated that the veteran's foot structure is accommodated by orthopedic shoe gear and the severity of his pes planus is supported and controlled with orthodic devices. The examiner opined that the veteran did not demonstrate findings of posterior tibial tendon dysfunction, typically seen with severe uncompensated pes planus. The Board has reviewed the objective medical evidence and, applying the facts of the case to the rating schedule, finds that it does not support the assignment of an evaluation greater than 30 percent for the veteran's service-connected bilateral pes planus. Recent medical evidence does not demonstrate any finding of a pronounced bilateral pes planus disability. In fact, the August 2003 VA medical examination report reflects that the veteran has mild to moderate bilateral pes planus, that is not manifested by findings typically seen with severe uncompensated pes planus deformity. In the two most recent VA examination reports dated in August 2003 and November 2004, the examiners found no objective evidence of marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation. Further, it has been noted in the VA podiatry treatment records that the veteran's foot pain, though persistent, was relieved with use of orthopedic shoes and padding inserts. The current symptomatology associated with the veteran's flat feet are contemplated in the criteria for a 30 percent evaluation, including subjective complaints of functional loss due to fatigue and pain on use. However, the bilateral pes planus does not meet, nor does it more closely approximate, the criteria for pronounced flat feet that would warrant the assignment of a 50 percent evaluation. As such, the Board finds that the 30 percent rating under Diagnostic Code 5276 accurately reflects the current disability level of the veteran's service-connected bilateral pes planus. In making this determination, 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 in the instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, at 55-57 (1990). ORDER An increased evaluation greater than 30 percent for bilateral pes planus is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs