Citation Nr: 0809863 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 04-16 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for bilateral pes planus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Ganz, Associate Counsel INTRODUCTION The veteran had active military service from November 1969 to January 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted service connection for bilateral pes planus with an initial disability rating of 10 percent and an effective date of February 28, 2003. The veteran testified at a Board hearing at the RO before the undersigned Veteran's Law Judge in September 2005. A transcript of the hearing is of record. In May 2006 the Board remanded the veteran's current claim for a VA foot examination and opinion regarding the severity of the veteran's disability and so the RO could obtain current VA medical records. FINDING OF FACT The veteran's pes planus is not shown to be severe, and neither the right nor left foot has manifested objective evidence of marked deformity (pronation, abduction, etc.), indications of swelling on use, or characteristic callosities. 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 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5276 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The issue of the evaluation to be assigned the now-service connected bilateral pes planus is a "downstream" issue. Hence, additional notification is not required. See Hartman v. Nicholson, 19 Vet. App. 473 (2006) aff'd by Hartman v. Nicholson, No. 06-7303 (Fed. Cir. Apr. 5, 2007). Notwithstanding, the RO provided the appellant with pre- adjudication notice with regard to entitlement to service connection in an April 2003 letter. Additional notice, including that concerning the issues of establishing higher evaluations and effective dates, was provided by March 2004 and May 2006 letters. The claim was subsequently re- adjudicated in an August 2006 supplemental statement of the case (SSOC). The veteran had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. VA has obtained service medical records, assisted the veteran in obtaining evidence, granted the veteran a hearing, and afforded the veteran medical examinations and opinions as to the nature and severity of his bilateral pes planus disability. All known and available records relevant to the issue on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis The RO granted service connection for a bilateral pes planus disability in July 2003, assigning a 10 percent rating with an effective date of February 28, 2003. The veteran contends that he is entitled to a higher rating for his disability. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In cases where entitlement to compensation has already 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rating a musculoskeletal disability, functional loss due to pain is a factor. Other factors include less movement than normal, weakened movement, excess fatigability, pain on movement, and painful motion. 38 C.F.R. § 4.40, 4.45, and 4.59. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Under Diagnostic Code 5276, a 10 percent evaluation is assigned for a moderate disability with evidence of weight bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet whether the disability is unilateral or bilateral. For a severe pes planus disability, the rating criteria contemplates objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indications of swelling on use with characteristic callosities, with a 20 percent evaluation assigned for a unilateral disability and a 30 percent evaluation for a bilateral disability. Lastly, 30 and 50 percent evaluations may be assigned for unilateral and bilateral pes planus, respectively, that is pronounced 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. For the veteran to receive an evaluation for bilateral pes planus higher than 10 percent the evidence must show that the disability rises to the requisite level of severity as proscribed in 38 C.F.R. § 4.71a, DC 5276. A VA examination was conducted in June 2003. The veteran's private medical records and service records were reviewed by the examiner. The examiner noted that the veteran had bulging arches with weight bearing and misalignment of both Achilles tendons. There was pain on palpitation of both Achilles tendon. No callous formation was noted and the veteran was able to stand and squat. The valgus was correctable without weight bearing and no manipulation was required. The forefoot and midfoot misalignment was correctable without weight bearing. A diagnosis of pes planus and bilateral calcaneal spurring with mild to mildly moderate functional loss due to pain. VA podiatry treatment records dated in July 2004 note that the veteran subjectively reported pain in his feet, and that he was given inserts that helped some, but that by the end of the day the pain was very bad. VA podiatry treatment records dated in August 2004 indicate that the veteran complained of pain in both medial arches and at the plantar heel bilaterally. It was noted that the veteran wore custom molded orthotics for five years and that they were so used that he could not get support from them any longer. He denied any other foot problems. No open lesions were noted, no interdigital macerations were present. Collapsed medial arches bilaterally and pain at the plantar aspect of the heels bilaterally were noted. The veteran was to be cast for custom orthotics, which subsequent VA podiatry records dated in November 2004 noted he was provided orthotics. A VA examination was conducted in July 2006. The veteran's claims file was reviewed by the examiner and x-rays were conducted. The examiner noted that the veteran's bilateral feet did not reveal any painful gait or functional limitation on standing or walking, but that he was unable to rise on his toes or perform a complete squat. There was no evidence of edema or tenderness of the feet. There was no noted callous formation or corns. It was reported that there was no misalignment of the Achilles tendon and that the Achilles tendon ligament was intact. The examiner reported that there were no calluses. Diagnoses of pes planus bilaterally, moderate size plantar calcaneal spurs, and mild hallux valgus deformities were given. To receive a rating higher than 10 percent under DC 5276, the medical evidence must show a severe pes planus disability. The rating criteria contemplates objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indications of swelling on use with characteristic callosities, with a 20 percent evaluation assigned for a unilateral disability and a 30 percent evaluation for a bilateral disability. None of the examination reports or treatment records indicate that the veteran has a marked deformity of either foot, swelling on use, or callosities. While there was pain on palpitation of both Achilles tendon reported during the June 2003 VA examination, this does not constitute evidence of a marked deformity contemplated for a severe pes planus disability. The currently assigned 10 percent disability evaluation for a moderate pes planus disability most nearly approximates the veteran's overall disability picture in that it contemplates inward bowing of the tendo Achilles and pain on manipulation and use of the feet whether for a bilateral or unilateral disability. The veteran's complaints of pain, and the examiner's observations of pain and painful motion, were considered in the level of impairment and loss of function attributed to his disability. See DeLuca, supra. In numerous documents of record the veteran states the severity of his disability merits a higher rating. Although the veteran is competent to report the symptoms that he has experienced, he is not competent to offer an opinion as to matters requiring medical expertise such as the compensable extent of his disability. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, while the veteran's lay assertions have been considered they do not outweigh the medical evidence of record, which shows that the criteria for a disability rating higher than 10 percent have not been met. Gilbert v. Derwinski, 1 Vet. App. 49; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.71a, DC 5276. The assignment of "staged ratings" has been considered; as the medical evidence of record indicates no period of time when the veteran's pes planus disability could be rated above 10 percent, no "staged rating" will be assigned. See Fenderson v. West, 12 Vet. App. 119, 126. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and an increased rating is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has considered whether the veteran's disability picture warrants a compensable rating on an extraschedular basis. Regulation permits extra-schedular rating when "the schedular evaluations are found to be inadequate ... [because] the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The rating schedule, however, is meant to compensate for the average impairment in civil occupations generally resulting from disability. 38 C.F.R. § 3.321. In this case, the veteran has presented no evidence indicating that there exist such factors as marked interference with employment or frequent periods of hospitalization resulting from his service-connected bilateral pes planus disability. ORDER Entitlement to an initial evaluation in excess of 10 percent for bilateral pes planus is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs