Citation Nr: 0714815 Decision Date: 05/17/07 Archive Date: 06/01/07 DOCKET NO. 00-13 977 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased rating for tinea pedis, currently evaluated as 10 percent disabling. 2. Entitlement to a rating for bilateral pes planus in excess of 30 percent prior to March 29, 2006, and in excess of 50 percent since March 29, 2006. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A. Cryan, Associate Counsel INTRODUCTION The veteran served on active duty from June 1962 to July 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The veteran testified at hearing at the RO in September 2000. The veteran's case was remanded to the RO for additional development in August 2004. By way of an April 2006 rating decision, the veteran's service-connected bilateral pes planus was evaluated as 50 percent disabling, effective from March 29, 2006. FINDINGS OF FACT 1. The veteran's tinea pedis is evidenced by involvement of ten percent of the body with no ulcers, exfoliation, systemic manifestation, exudation, or itching. He has not required systemic therapy except intermittently, the last time being in 2002. 2. Prior to March 29, 2006, the veteran's service-connected bilateral pes planus was productive of severe symptoms including evidence of pronation and callosities. 3. Since March 29, 2006, the veteran's service-connected bilateral pes planus is productive of pronounced symptoms including marked pronation, extreme tenderness of the plantar surface of the feet, and occasional swelling; his symptoms are not improved by orthotic shoes. CONCLUSIONS OF LAW 1. The schedular criteria for a higher evaluation for tinea pedis have not been met. 38 U.S.C.A. § 1155 (West 2002 and Supp. 2006); 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Codes 7806, 7813 (2002); 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7813 (2006). 2. The schedular criteria for a disability rating for bilateral pes planus in excess of 30 percent prior to March 29, 2006, and in excess of 50 percent from March 29, 2006, have not been met. 38 U.S.C.A. § 1155 (West 2002 and Supp. 2006); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5276 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran was afforded a VA examination in August 1999 to assess his tinea pedis. The veteran was noted to be using steroid containing creams and griseofulvin. He had onychomycosis and cracking of the skin between the toes in the web spaces with occasional bleeding. He reported mild burning and itching. Physical examination revealed severe pes planus and the skin of the bilateral feet had heavy callus formation with some fissures and cracks on the lateral aspects and the heels. He was diagnosed with mild tinea pedis between his toes on both feet. The veteran was afforded a VA orthopedic examination in August 1999. The veteran reported that his feet had significantly worsened over the years. He said prolonged standing and walking caused pain and swelling, making it difficult for him to wear shoes. He said he was able to stand for a maximum of one hour, and walking over a mile was too difficult. He said he lost a job at the post office secondary to foot pain from prolonged standing. The examiner said that, with the veteran standing bare footed, he had heel valgus deformities. The feet were not swollen. The examiner said the veteran had callus formation on the right foot under the head of the talus and a large callus under the third and fourth metatarsal heads, which was tender. The examiner diagnosed the veteran with right foot pes planosvalgus deformity with callus formation medially but good posterior tibia function, passively correctible to a neutral plantigrade foot and a long standing left planovalgus deformity with a rigid supination deformity of the forefoot causing unweighting of the first metatarsal and large callus formation along the lateral metatarsal heads. The veteran testified at a hearing at the RO in September 2000. The veteran reported that his feet were totally flat. He said VA had issued him orthopedic shoes and inserts, which he said were "not working." He said he walked on the sides of his feet due to pain. He said he had constant bilateral foot pain which worsened with standing and walking. He said he could walk two blocks before he had to stop. He noted his feet and ankles swelled, and his feet had a lot of little cracks in the skin. He said he had calluses, blisters, and bunions on his feet. He said he had a job at the post office that he lost because his feet would get painful and swollen. He said he could not work due to his feet and skin problem. He said he had fungus all over his feet, including the top, bottom, on the toes, and in between the toes. He said his feet itched. He testified that he occasionally used a cane and that his heel went numb from walking on the sides of his feet. Associated with the claims file are VA outpatient treatment reports dated from June 1998 to June 2003. In August 1999, September 1999, and October 1999, oral griseofulvin and topical Eucerin and ketoconazole were listed as active medications. In November 1999 topical Eucerin and ketoconazole were listed as active medications. One of the veteran's treating physicians at VA submitted a statement dated in June 2000. The veteran was noted to have painful callosities and painful bunions bilaterally. Inserts were noted to help the veteran only minimally. He said the veteran had swelling and pain in his bilateral feet. The physician submitted a second statement on the same date and said the veteran could not stand on his feet at all times or walk due to deformities. In July 2000 the veteran was noted to have severe bilateral pes planus, bilateral hammer toes, varus forefoot alignment worse on the left, and plantar callus under the left metatarsophalangeal joint which was painful to pressure, and fungal nails. The veteran was noted to have bilateral foot pain which was best relieved by shoes prescribed by VA and inserts. The veteran was noted to ambulate without assistive devices. The veteran was noted to have hyperpronation worse on the left. In September 2000 topical ketoconazole was listed as an active medication. The veteran was noted to have severe bilateral pes planus, bilateral hammer toes, varus forefoot alignment worse on the left, and plantar callus under the left metatarsophalangeal joint. In February 2001 topical ketoconazole was listed as an active medication. One of the veteran's physicians submitted a statement in April 2001 in which he said the veteran's feet were worse and not improved with the use of orthopedic shoes and orthotics. He said the veteran had extremely painful calluses under the third metatarsal. In another undated letter the same physician said that the veteran had severe bilateral pes planus, bilateral hammer toes, and had painful plantar calluses under his first metatarsal. He said the veteran had a hard time walking due to the callus and a left leg ulcer. In April 2001 the veteran was noted to have moderate to severe bilateral pes planus and chronic callusing. He was issued a pair of supportive shoes. In May 2001 the veteran was noted to have very flat feet with blisters on the medial aspect of his bilateral heels. No surrounding erythema or warmth was reported. He was noted to have dermatophytosis of the feet. In June 2001 the veteran was seen for painful calluses bilaterally. The pain was noted to be bothered by ambulation. His skin was noted to be warm, dry, and supple bilaterally with no macerations or open lesions. He was noted to have ruptured bullae on the bilateral heels and decreased medical arch bilaterally. In October 2001 the veteran was seen for painful calluses bilaterally. The pain was noted to be bothered by ambulation. His skin was noted to be warm, dry, and supple with no macerations or open lesions. His nails were thick, long, and dystrophic. He was noted to have decreased medial arch bilaterally. In October 2002 an assessment revealed that the veteran walked frequently, had no limitation of mobility, and he ambulated without assistive devices. Also in October 2002 the veteran seen for painful thickened nails and lesions. He was noted to have dystrophic mycotic incurvated toenails with pain erythematous nail borders, subungal debris, malodor, brittleness, superficial mycocis, painful keratomas of the fourth metatarsophalangeal joint and distal fourth toe, and painful fissuring of the bilateral heels with erythema. Later in October 2002 he was noted to have onychomycosis of the bilateral feet with extreme dyshidrosis. The veteran was afforded a VA examination in April 2003. At that time medications included topical ciclopirox, topical hydrocortisone, and topical salicylic acid. The veteran reported that when his feet are sore he can hardly stand on them. He said he avoided walking because it aggravated his feet. He said he walked less than a block to get to the bus. He said he walked three to four blocks at a time, which caused pain in his feet. The veteran reported that he lost his job at the post office two years earlier because he had trouble walking. The veteran was noted to be followed for onychomycosis, ingrown toenails, and severely dyshidrotic skin. He said chronic foot pain caused him to walk on the sides of his feet. He said he used a cane when his foot pain was bad. He said orthopedic shoes did not provide relief. Examination of the veteran's feet revealed dry skin but no deep fissures and small fissures between half of his toes and multiple small fissures on his heels where the skin was very dry. No onychomycosis was noted. He ambulated with a slow gait and his feet were noted to naturally overpronate and he tried to compensate by supinating to take pressure of the medial side of the feet. He was noted to be tender over calluses which were noted to be under the left metatarsal head on the left foot and on the medial foot border and under the fifth metatarsal head on the right foot. The examiner diagnosed the veteran with severe bilateral pes planus that did not reapproximate with non-weight bearing. He had heel valgus deformity bilaterally more marked on the left. He was also assessed with bilateral tinea pedis. The veteran was afforded a VA examination for the purpose of evaluating his tinea pedis in March 2006. The veteran was noted to have been treated with chlortramizole and loprox topically and griseofulvin orally in the past few years. Over the past twelve months the veteran was noted to have used intermittent topical therapy. The exposed area affected was zero and the entire body affected was ten percent. Disfigurement was noted to be present. The veteran was noted to have hammer toes and limited mobility of his feet noted to be due to corns and pain on walking. The veteran had several thick, crusted calluses and corns which made it difficult for the veteran to bear weight. He did not have ulcers, exfoliation, systemic manifestation, exudation, or itching. He was noted to have painful lesions and some disfigurement of the feet. Acne and chloracne were not present. There was no disfiguring of the head, face, or neck. The examiner diagnosed the veteran with dry skin and a history of tinea pedis which was not evident at the time of the examination. The examiner said the veteran's foot pain was due to his bony deformities, corns, and calluses rather than fungus. The veteran was afforded a VA examination for the purpose of evaluating his pes planus in March 2006. The veteran reported constant bilateral foot pain, weakness, stiffness, and occasional swelling. The veteran reported that he used orthotics and bilateral shoe inserts, which he said did not provide much relief. Physical examination of his feet revealed dry skin with small fissures between his toes and multiple small fissures and thickened, dry skin on his heels. He ambulated with a slow gait with the assistance of a cane and when asked to take off his shoes and socks he said it would hurt to walk on the floor. He was unable to walk on his toes, and his toes were very painful. The veteran was noted to have calluses on the left foot under the fourth metatarsophalangeal joint, on the lateral aspect of the left foot, and under the third toe. He was noted to have bilateral pes planus that did not reapproximate with weightbearing. The examiner said the veteran had heel well deformity bilaterally, more marked on the left side. He said the veteran had marked pronation and extreme tenderness on the plantar surfaces of the feet and that his symptoms were not relieved with orthopedic shoes or appliances. He did not have severe spasm of the tendo-Achillis on manipulation. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002 and Supp. 2006); 38 C.F.R. § 4.1 (2006). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. Where there is a question as to which of two evaluations 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 (2006). Tinea Pedis The Board notes that by regulatory amendment effective August 30, 2002, substantive changes were made to the schedular criteria for evaluating disabilities involving the skin. See 67 Fed. Reg. 49,590-49,599 (2002). Because this change took effect during the pendency of the veteran's claim, both the former and the revised criteria will be considered in evaluating the veteran's service-connected tinea. In evaluating the veteran's claim, the Board must determine whether the revised version is more favorable to the veteran. See VAOPGCPREC 7-2003. However, even if the Board finds the revised version more favorable, the reach of the new criteria can be no earlier than the effective date of that change. See VAOPGCPREC 3-2000. The veteran's tinea pedis (dermatophytosis) has been rated utilizing Diagnostic Code 7813 under both the old and the new rating criteria. Under the old criteria, dermatophytosis is to be rated as eczema under Diagnostic Code 7806--a 10 percent rating is for application when there is exfoliation, exudation, or itching, if involving an exposed surface or extensive area. A 30 percent rating is for application when there is constant exudation or itching, extensive lesions, or marked disfigurement. 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7813 (2002). Here, the Board finds that the veteran's disability picture more nearly approximates the criteria required for the currently assigned 10 percent evaluation. The veteran has reported mild burning and itching of his feet. At the April 1999 VA examination the veteran was diagnosed with mild tinea pedis between his toes on both feet. At the April 2003 VA examination, he was noted to have dry skin on his feet but no deep fissures and small fissures between half of his toes and multiple small fissures on his heels where the skin was very dry. The examiner assessed the veteran with bilateral tinea pedis. Finally, at the time of the March 2006 VA examination the veteran had several thick, crusted calluses and corns which made it difficult for the veteran to bear weight. He did not have ulcers, exfoliation, systemic manifestation, exudation, or itching. The examiner diagnosed the veteran with dry skin and a history of tinea pedis which was not evident at the time of the examination. The examiner said the veteran's foot pain was due to his bony deformities, corns, and calluses rather than fungus. While the examiner noted that the veteran had painful lesions and some disfigurement of the feet, the examiner noted that the tinea pedis was not evident at the time of the examination and that the veteran's foot pain was due to bony deformities, corns, and calluses, rather than fungus. VA outpatient treatment reports do not reveal that the veteran had constant exudation or itching, extensive lesions, or marked disfigurement due to tinea pedis. The veteran reported mild burning and itching at one time but the evidence shows that his tinea pedis and its symptoms are recurring, not constant. The tinea pedis has, at times, even been described by an examiner as not evident. Thus, under the old criteria, the Board finds that an evaluation greater than the currently assigned 10 percent is not warranted. Under the new criteria, a 10 percent evaluation is for application when there is at least five percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of exposed areas affected; or there is intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12- month period. A 30 percent evaluation is for application when there is 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7813 (2006). The April 2003 VA examination revealed that the medications used to treat the veteran's bilateral tinea pedis included topical ciclopirox, topical hydrocortisone, and topical salicylic acid. The veteran was noted to be followed for onychomycosis, ingrown toenails, and severely dyshidrotic skin. Examination of the veteran's feet revealed dry skin but no deep fissures and small fissures between half of his toes and multiple small fissures on his heels where the skin was very dry. The March 2006 VA examination revealed that the veteran was treated with intermittent topical therapy over the previous twelve months. The exposed area affected was zero and the entire body affected was ten percent. The examiner diagnosed the veteran with dry skin and a history of tinea pedis which was not evident at the time of the examination. The examiner said the veteran's foot pain was due to his bony deformities, corns, and calluses rather than fungus. There has been no systemic therapy for the veteran's tinea pedis for the time period after the new regulation went into effect. Applying these facts to the new rating criteria, the Board finds that disability picture as regards his tinea pedis more nearly approximates the criteria required for the current 10 percent evaluation, and a higher evaluation is therefore not warranted. In sum, a higher evaluation for the veteran's tinea pedis is not warranted under either the old or the current criteria for evaluating the skin. Bilateral Pes Planus The veteran's service-connected disability for bilateral pes planus has been rated under Diagnostic Code 5276. 38 C.F.R. § 4.71a (2006). Under Diagnostic Code 5276, a 30 percent evaluation is for application when there is severe bilateral disability evidenced by marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent evaluation is for application when there is pronounced bilateral disability evidenced by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo-Achillis on manipulation, which is not improved by orthopedic shoes or appliances. A 50 percent rating is the maximum schedular rating available for bilateral pes planus. Upon review of the evidence of record and the applicable criteria, for the period prior to March 29, 2006, the Board finds that the assignment of a rating in excess of 30 percent for service-connected pes planus is not warranted. During the time period in question the veteran's pes planus was described as severe. There was evidence of pain on manipulation and characteristic callosities. The veteran was treated for his pes planus at VA. The veteran was noted to have bilateral foot pain which was best relieved by shoes prescribed by VA and inserts. The evidence reveals that the veteran, and a treating physician at VA, has at times also reported that the orthotics did not provide relief. The April 1999 VA examiner said, with the veteran standing bare footed, he had heel valgus deformities. The bilateral feet were not swollen. The examiner said the veteran had callus formation on the right foot under the head of the talus and a large callus under the third or fourth metatarsal heads which was tender. The examiner diagnosed the veteran with right foot pes planosvalgus deformity with callus formation medially but good posterior tibia function, passively correctible to a neutral plantigrade foot and a long standing left planovalgus deformity with a rigid supination deformity of the forefoot causing unweighting of the first metatarsal and large callus formation along the lateral metatarsal heads. In October 2002 an assessment at VA revealed that the veteran walked frequently, had no limitation of mobility, and he ambulated without assistive devices. At the April 2003 VA examination, the veteran said he walked three to four blocks at a time which caused pain in his feet. The veteran reported that he lost his job at the post office two years prior because he had trouble walking. The veteran said chronic foot pain caused him to walk on the sides of his feet. He said he used a cane when his foot pain was bad. He said orthopedic shoes did not provide relief. He ambulated with a slow gait and his feet were noted to naturally overpronate and he tried to compensate by supinating to take pressure of the medial side of the feet. He was noted to be tender over calluses which were noted to be under the left metatarsal head on the left foot and on the medial foot border and under the fifth metatarsal head on the right foot. The examiner diagnosed the veteran with severe bilateral pes planus that did not reapproximate with non- weight bearing. He had heel valgus deformity bilaterally more marked on the left. The evidence does not indicate that there is pronounced bilateral disability evidenced by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement or severe spasm of the tendo-Achillis on manipulation, which is not improved by orthopedic shoes or appliances. Consequently, the evidence does not show that the veteran's symptoms approximate the criteria for a 50 percent rating for the period prior to March 29, 2006. Since March 29, 2006, the veteran was assigned a 50 percent evaluation, the highest schedular rating available for disabilities of the feet, including pes planus. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, the Board is unable to identify a reasonable basis for granting a disability evaluation in excess of the 10 percent for tinea pedis, an evaluation in excess of 30 percent for bilateral pes planus from for the period prior to March 29, 2006, or in excess of 50 percent from March 29, 2006, for the veteran's bilateral pes planus. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002 and Supp. 2006); 38 C.F.R. § 3.102 (2006). Additionally, the Board finds that there is no showing that the veteran's service-connected tinea pedis or bilateral pes planus has reflected so exceptional or so unusual a disability picture as to warrant the assignment of any higher evaluations on an extra-schedular basis. In this regard, the Board notes that none of these disabilities has been shown to markedly interfere with employment (i.e., beyond that contemplated in the assigned rating), to warrant frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards. Hence, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In deciding the issue in this case, the Board has considered the applicability of the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2006). The Board has also considered the implementing regulations. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Under 38 U.S.C.A. § 5103, the Secretary is required to provide certain notices when in receipt of a complete or substantially complete application. The purpose of the first notice is to advise the claimant of any information, or any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. The Secretary is to advise the claimant of the information and evidence that is to be provided by the claimant and that which is to be provided by the Secretary. 38 U.S.C.A. § 5103(a) (West 2002 and Supp. 2006). In those cases where notice is provided to the claimant, a second notice is to be provided to advise that, if such information or evidence is not received within one year from the date of such notification, no benefit may be paid or furnished by reason of the claimant's application. 38 U.S.C.A. § 5103(b) (West 2002 and Supp. 2006). In addition, 38 C.F.R. § 3.159(b), details the procedures by which VA will carry out its duty to notify. The veteran filed his claim in June 1999, prior to enactment of the VCAA. The veteran's case was remanded in August 2004. The RO notified the veteran of the evidence/information required to substantiate his claim in August 2004. He was advised to submit any evidence he had to show that his service-connected disabilities had worsened enough to warrant a greater evaluation. In reviewing the requirements regarding notice found at 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b), the Board cannot find any absence of notice in this case. As reviewed above, the veteran has been provided notice regarding the type of evidence needed to substantiate his claim, what VA would do to assist, and what was expected of him, including the presentation of all pertinent evidence of which he was aware. In summary, the Board finds that no additional notice is required under the provisions of 38 U.S.C.A. § 5103 as enacted by the VCAA and 38 C.F.R. § 3.159(b). See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). (Although the notice required by the VCAA was not provided until after the RO adjudicated the appellant's claim, "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini v. Principi, 18 Vet. App. 112, 122 (2004). Consequently, the Board does not find that the late notice under the VCAA requires remand to the RO. Nothing about the evidence or the appellant's response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA.) Additionally, the veteran was told of the criteria used to award disability ratings and the criteria for assigning an effective date in a March 2007 letter from the RO. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist under 38 U.S.C.A. § 5103A and 38 C.F.R § 3.159(c)(1)-(3), the Board notes that the RO obtained VA treatment reports. The veteran was afforded several VA examinations during the pendency of his appeal. The veteran has not alleged that there is any outstanding evidence that would support his claim for increased ratings. The Board is not aware of any such evidence. ORDER Entitlement to an increased evaluation for tinea pedis, currently evaluated as 10 percent disabling, is denied. Entitlement to a rating in excess of 30 percent prior to March 29, 2006, and in excess of 50 percent since March 29, 2006, for bilateral pes planus is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs