Citation Nr: 1024388 Decision Date: 06/30/10 Archive Date: 07/08/10 DOCKET NO. 08-16 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased evaluation for bilateral pes planus, currently rated as 10 percent disabling. 2. Entitlement to an increased rating for a history of a stress fracture of the right tibia, currently rated as 0 percent disabling. 3. Entitlement to an increased evaluation for left posterior tibial tenosynovitis, currently rated as 10 percent disabling. 4. Entitlement to an increased evaluation for right posterior tibial tenosynovitis, currently rated as 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from October 1993 to September 1998. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Huntington, West Virginia, VA Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran was afforded a hearing before a decision review office in October 2008. In February 2010, the Veteran testified before the undersigned at a hearing in Washington, D.C. A transcript of each of the hearings has been associated with the claims file. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447, 454 (2009), the United States Court of Appeals for Veterans Claims (Court) held that when entitlement to a total disability rating based on individual unemployability (TDIU) is raised during the adjudicatory process of an underlying disability claim or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability. In this case, the Veteran has made assertions in regard to employment. Transcript of February 22, 2010, hearing at 21- 24. This issue has not been adjudicated by the RO. It is referred to the RO for action deemed appropriate. FINDINGS OF FACT 1. There is competent evidence tending to establish a marked degree of impairment due to service-connected bilateral pes planus. 2. The competent and probative evidence establishes that the service-connected stress fracture of the right tibia is healed. 3. The competent and probative evidence establishes that the degree of impairment due to left posterior tibial tenosynovitis is no more than moderate and there is no ankylosis. 4. The competent and probative evidence establishes that the degree of impairment due to right posterior tibial tenosynovitis is no more than moderate and there is no ankylosis. CONCLUSIONS OF LAW 1. The criteria for a 30 percent disability evaluation for bilateral pes planus have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2009). 2. The criteria for a disability evaluation in excess of 0 percent for a history of right tibia stress fracture have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 8799-8720 (2009). 3. The criteria for a disability evaluation in excess of 10 percent for left posterior tibial tenosynovitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5024 (2009). 4. The criteria for a disability evaluation in excess of 10 percent for right posterior tibial tenosynovitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5024 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must request that the claimant provide any evidence in her possession that pertains to the claim based upon 38 C.F.R. § 3.159(b). The requirement of requesting that the claimant provide any evidence in her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. However, although this notice is no longer required, the Board notes that the Veteran was aware that it was ultimately her responsibility to give VA any evidence pertaining to the claims. The December 2005 letter told her to provide any relevant evidence in her possession. See Pelegrini, 18 Vet. App. at 120. The claimant's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected disabilities since claimant was last examined in 2009. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The February 2009 and May 2009 VA examination reports are thorough and supported by VA outpatient and private treatment records. The examinations in this case are adequate upon which to base a decision. The records satisfy 38 C.F.R. § 3.326. Thus, the Board finds even if there was VCAA deficiency, the evidence of record is sufficient to rebut this presumption of prejudice as the record shows that this error was not prejudicial to the claimant and the essential fairness of the adjudication process in this case was preserved. The Board notes that the record was held open for 30 days for the submission of additional evidence following the February 2010 hearing. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The June 2008 and February 2009 letters also discussed the appropriate disability rating or effective date to be assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2009). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. When rating a veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If two evaluations are potentially applicable, 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. The Board notes that VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, and that the Board must thus consider whether the veteran is entitled to any staged ratings higher than those presently assigned. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 5024, tenosynovitis is rated on limitation of motion of the affected parts, as for degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5024. Diagnostic Code 5024 is listed as part of a group of Diagnostic Codes governing disabilities to be rated by analogy to degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, the disability is to be rated as follows: with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with x- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5271, moderate limitation of motion of the ankle warrants a 10 percent disability rating, and marked limitation of motion of the ankle warrants a 20 percent disability rating. The average normal range of motion of the ankle is from zero to 20 degrees of dorsiflexion and from zero to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5276 for flatfoot, a 10 percent rating, unilateral or bilateral, is warranted for a moderate degree of impairment with the weight-bearing line over or medial to the great toe, inward bowing of the tendon Achilles, and pain on manipulation and use of the feet. A 20 percent rating for unilateral pes planus or a 30 percent rating for bilateral pes planus requires a severe condition with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indications of swelling on use, and characteristic callosities. A 30 percent rating for unilateral pes planus or a 50 percent rating for bilateral pes planus requires a pronounced condition manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Complete paralysis of the sciatic nerve occurs when the foot dangles and drops, when no active movement is possible of muscles below the knee and when flexion of the knee is weakened or, on rare occasions, lost. Complete paralysis warrants an 80 percent disability rating. Severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating. Moderately severe incomplete paralysis warrants a 40 percent disability rating, moderate incomplete paralysis warrants a 20 percent disability rating and mild incomplete paralysis warrants a 10 percent disability rating. 38 C.F.R. § 4.126, Diagnostic Code 8520. Sciatic neuralgia is rated under Diagnostic Code 8720; neuritis is rated under Diagnostic Code 8620. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Disabilities involving sciatic nerve impairment that are wholly sensory may be rated, at maximum, as moderately severe incomplete paralysis. 38 C.F.R. § 4.123. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Bilateral Pes Planus The Veteran asserts that her service-connected bilateral pes planus, rated as 10 percent disabling under Diagnostic Code 5276, is worse. Having reviewed the record, the Board finds a relative equipoise in the evidence, and thus, a finding in favor of a 30 percent rating is supportable. A May 2006 VA treatment record notes bilateral pes plano valgus, and no inversion of the heel on heel raises, and in a May 2006 private record, pes plano valgus was reported to be severe, bilaterally. A February 2007 private record notes fairly significant pes planus with a too-many-toes sign, and a March 2007 private record notes a progressive flatfoot deformity. Significant pain along the medial mid foot area with swelling is noted in an April 2007 private record. The Board notes that while no toe overriding and no callosities were noted on VA examination in February 2009, the examiner reported severe flat foot on the left side and moderate-sized flat foot on the right side on weight bearing, with limitation on prolonged standing, running, jogging, and climbing stairs due to pain in both feet. The Board notes the examiner's reference to additional limitation due to pain, weakness fatigue, lack of endurance after repeated motion, incoordination and flare up. In addition, an adverse impact on activities of daily living and personal grooming was noted. A January 2010 VA record notes that x-ray examinations of the feet in the weight bearing position revealed significant collapse of the medial arch. In light of these findings, the Board concludes that the Veteran's disability picture associated with bilateral pes planus more nearly approximates a degree of impairment reflected by a 30 percent rating. A rating in excess of 30 percent is not warranted. The Board has considered the assertions in a July 2008 letter from the Veteran's spouse to the effect that the Veteran has functional impairment due to symptoms such as pain and weakness, as well as an October 2008 Report of Contact noting abnormal wear of the left shoe. The competent and probative evidence, however, does not establish a pronounced degree of impairment manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances, at any time during the relevant period. The May 2006 VA examination report notes the Achilles tendon was well aligned, and no pain on manipulation of the Achilles tendon and no irregularity were noted. The March 2008 VA examination report, notes mild right hind foot valgus deformity, with no tightening of the tendo Achilles, no pain on manipulation, no tightening of the teno Achilles on the left, no callosity in the plantar aspect of the left foot, and valgus deformity was noted to be mild. In addition, the February 2009 VA examination report notes a normal Achilles tendon, and limitations with prolonged standing, running, jogging, and climbing stairs was noted to be due to not only pain in both feet, but also the right knee, and a May 2006 private record notes bilateral foot pain located in the medial aspect of the left ankle and foot, radiating proximally into the ankle. The Board notes that the June 2009 rating decision reflects that service connection has been established for left and right posterior tibial tenosynovitis, as well as right knee chondromalacia associated with the service-connected left posterior tibial tenosynovitis. The evaluation of the same manifestation under different diagnoses, a practice known as "pyramiding," is to be avoided. See 38 C.F.R. § 4.14. Regardless, in this case, the competent and probative evidence does not establish a pronounced degree of impairment manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances, at any time during the relevant period. The Board notes that the combined rating for disabilities of an extremity cannot exceed the rating for the amputation at the elective level, were the amputation to be performed. 38 C.F.R. § 4.68. Thus, in this case, the combined evaluation for the right lower extremity disabilities cannot exceed 40 percent. In regard to assertions concerning the impact on employment, the Board notes that while the May 2006 VA examiner recommended that the Veteran change jobs to one which would allow more time off of her feet, such as desk work, and the May 2008 VA examination report notes that her occupation should be restricted from requiring prolonged standing and walking, with notation that she had been placed on light duty, the February 2009 VA examination report notes no restriction on her current occupation. Regardless, the 30 percent evaluation assigned herein for bilateral pes planus contemplates the degree of impairment in earning capacity, if any, including loss of time from exacerbations due to the service-connected bilateral pes planus. 38 C.F.R. § 4.1. A determination as to the degree of impairment due to service-connected disability requires competent evidence. The Veteran is competent to report her symptoms, to include pain and the impact the disability has on daily activities. Her lay opinion alone, however, is not sufficient upon which to base a determination as to the degree of impairment due to the service-connected bilateral pes planus in this case. Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board has accorded more probative value to the objective medical findings, both VA and private, and while there is some doubt, resolving all doubt in the Veteran's favor, the Board concludes that a finding in favor of a 30 percent rating, but no higher, is supportable. The examiners reported objective findings and provided opinions based on reliable principles. In this case, there is competent evidence tending to establish that the Veteran's disability picture due to bilateral pes planus more closely approximates the degree of impairment reflected in the criteria for a 30 percent rating. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran or her representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no other provision upon which to assign a rating higher than the 30 percent evaluation herein assigned. The evidence is in favor of a 30 percent rating during the entire appeal period, but no higher. Consequently, the benefits sought on appeal are granted, in part. Residuals of a Right Tibia Stress Fracture The Veteran asserts that she has symptoms, to include pain, due to her service-connected history of a right tibia stress fracture and that a compensable evaluation is warranted. Having reviewed the record, the Board finds that a higher rating is not warranted during any portion of the appeal period. The AOJ has evaluated the history of a stress fracture of the right tibia under hyphenated, "built-up" Diagnostic Codes 8799-8720. Using Diagnostic Code "8720," signifies the AOJ's application of a closely analogous Code due to the lack of a Code specific to the unlisted disability of the tibia. 38 C.F.R. § 4.27. Diagnostic Code 8720 pertains to the sciatic nerve. The Veteran testified that she has residual pain in association with the right tibia stress fracture and has to use a cane on a daily basis, Transcript at 5-13 (2010), and the January 2006 VA examination report reflects complaints of sensitivity and pain to touch of a localized area at the mid portion of the anterior tibia. In addition, the March 2008 VA examination report reflects complaints of chronic pain in association with the stress fracture aggravated by prolonged standing and walking. Against this background, are the VA examination reports and opinions to the effect that the right tibia stress fracture is healed. The January 2006 VA examiner reported no discoloration, swelling, deformity, or bony abnormality, and x-ray examination of the tibia was noted to be normal. In addition, while a May 2006 VA treatment record notes tenderness to palpation over the posterior tibial tendons, and a May 2006 private record notes mild tenderness with palpation on the medial aspect at the tuberosity of the left navicular, no erythema, edema or increase in temperature was noted. Significantly, the March 2008 VA examiner stated that the right leg bony prominence in the middle third of the right tibia indicated a healed fracture, and no tenderness was noted. The examiner added that, clinically, there was no evidence of any musculoskeletal limitation from the healed stress fracture of the right tibia, due to pain, weakness, fatigue, lack of endurance, repetitive motion, incoordination or flare-ups, and that there was no adverse impact on her activities of daily living, such as personal grooming and hygiene, or on her current occupation. No residual disability of the healed stress fracture was specifically noted. The Board notes that private records, to include an August 2007 record, reflect the use of crutches following surgery on the left tibia, not the right, and for which a temporary total evaluation was assigned from May 2007 to October 2007. The March 2008 VA examination report notes a cane was required for prolonged standing and ambulation, and the examiner noted that she was able to walk a short distance in the examining room without the cane, and the May 2009 VA examination report notes that the Veteran did not use, and did not require the use of, an assistive device, such as a cane, crutch, or walker. In this case, and although the Veteran complains of pain, the competent and probative evidence does not establish that the Veteran has residual disability supported by adequate pathology due to the service-connected history of a right tibia stress fracture, at any time during the relevant period. Under these circumstances, the basis for the assignment of a compensable evaluation has not presented. The Board notes that the June 2009 rating decision shows that service connection has also been established for right posterior tibial tenosynovitis, and the evaluation of the same manifestation under different diagnoses, a practice known as "pyramiding," is to be avoided. See 38 C.F.R. § 4.14. Nevertheless, in this case, the competent and probative evidence does not establish mild sciatic nerve impairment of such a degree that a compensable evaluation is warranted. The Board notes that disabilities of the right lower extremity have been separately rated and the combined rating for disabilities of an extremity cannot exceed the rating for the amputation at the elective level, were the amputation to be performed. 38 C.F.R. § 4.68. In this case, the combined evaluation for the right lower extremity disabilities cannot exceed 40 percent. A determination as to the degree of impairment due to service-connected disability requires competent evidence. The Veteran is competent to report her symptoms, to include pain. Her lay opinion, alone, however, is not sufficient upon which to base a determination as to the degree of impairment due to the history of a right tibia stress fracture. Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record, to include the opinions to the contrary. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board has accorded more probative value to the competent VA medical opinions. The examiners reviewed the claims file, the opinions are consistent and based on objective findings and reliable principles. In reaching a determination, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran or her representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no other provision upon which to assign a higher rating. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Consequently, the benefit sought on appeal is denied. Left Posterior Tibial Tenosynovitis The Veteran asserts that the degree of impairment due to her service-connected left posterior tibial tenosynovitis has increased and that a higher rating is warranted. Having considered the evidence, the Board finds that a higher rating is not warranted. The Veteran's left posterior tibial tenosynovitis has been assigned a 10 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5024. In addition, a temporary total evaluation was assigned from May 24, 2007 for left posterior tibial tenosynovitis to reflect the need for convalescence following surgery. 38 C.F.R. § 4.30. The temporary total evaluation was assigned without regard to the other provisions of the rating schedule and such rating was followed by a 10 percent rating, from October 1, 2007. The Board must evaluate the evidence of record since the filing of the claim for an increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). It is reasonable to conclude that the period of time during which the 100 percent evaluation was assigned is not on appeal, although the facts during this period of time have been considered by the Board. Diagnostic Code 5024 directs that tenosynovitis be evaluated as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. In this case there is positive and negative evidence. The Board must weigh the credibility and probative value of the evidence, and in so doing, the Board may favor one medical opinion over another. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to the evidence, the Board also considers factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). At the RO hearing, the Veteran testified that she has functional impairment due to her lower extremities, to include difficulty with standing and that she had to slide down the stairs. Transcript at 4-5 (2008). In addition, a July 2008 statement from the Veteran's spouse is to the effect that the Veteran has functional impairment due to symptoms to include pain and weakness. Against this background are the VA and private examination reports and opinions. The January 2006 VA examination report reflects an assessment of a history of bilateral tibial tenosynovitis, not present on examination, and while a May 2006 VA treatment record notes tenderness to palpation over the posterior tibial tendons, and a May 2006 private record notes tenderness with palpation on the medial aspect of the left foot and ankle area, especially posterior to the medial malleolus. There was slight edema and no erythema, edema or increase in temperature was noted. There was good resolution of the Veteran's symptoms of posterior tibial tendon dysfunction on the left with steroid injection. In addition, a November 2007 private record notes that the Veteran was post posterior tibial tendon reconstruction with calcaneal osteoarthrotomy and Achilles' tendon lengthening with a good result, and a December 2007 record notes that x- ray examination showed that the calcaneal osteotomy was completely healed, and the examiner added that the screw was in good position, the hole in the navicular where the tendon transfer had been performed was visible, and that the joints were well preserved. Further, and while atrophy and a minimal limp were noted, no tenderness around the tendon transfer was reported and good motion of the ankle and subtalar joint was noted. A March 2008 record notes that weakness of the left ankle and foot, as well as tenderness along the distal tibia, was slight, and it was noted that the Veteran had an inversion against resistance indicating that the transfer was working. The Board notes that while a December 2007 private physical therapy record notes dorsiflexion to 10 degrees and plantar flexion to 40 degrees, and a March 2008 record reflects dorsiflexion was to eight degrees and plantar flexion was approximately 60 degrees, the May 2009 VA examination report notes dorsiflexion of the left ankle was 20 degrees, plantar flexion was 40 degrees, and inversion and eversion were normal. Regardless, these findings do not establish a marked degree of impairment due to left posterior tibial tenosynovitis. Thus, the criteria for a higher rating under Diagnostic Code 5271 have not been met. In reaching a determination in this case, the Board has considered the assertions in regard to functional impairment. The Board notes that while the March 2008 VA examination report notes that the Veteran was walking slowly with a cane, favoring the left lower extremity, and the examiner reported limitation in prolonged standing and walking due to chronic posterior tibial tendonitis of both ankles and feet, there was no additional functional impairment due to pain, weakness fatigue, lack of endurance after repetitive motion, incoordination or flare-up. No adverse impact on activities of daily living, such as personal grooming, hygiene, and transportation was noted. The May 2009 VA examination report notes that she was not unsteady and was able to perform her activities of daily living. While tandem gait was mildly to moderately unsteady and a mild swaying on Romberg was noted, no requirement of an assistive device was reported and no objective evidence of pain on motion was noted. Strength of the lower extremities was 5/5 and neurological examination was normal. In addition, diffuse swelling of the ankles was mild and diffuse tenderness was moderate on VA examination in May 2009. No heat, erythema, crepitus or laxity was reported, and the examiner stated that there was moderate weakened movement and excess fatigability of the left ankle. The report of examination notes no additional functional impairment during flare-ups, which were noted to occur daily and of a moderate degree of severity and to the extent that sedentary work has been recommend, the May 2009 VA examiner stated that she was able to do her usual job, and nothing in the September 2009 VA record in which posterior tibial dysfunction on the left changes that conclusion. Regardless, the 10 percent evaluation assigned contemplates the degree of impairment in earning capacity, if any, including loss of time from exacerbations due to the service-connected left posterior tibial tenosynovitis, during the entire appeal period. 38 C.F.R. § 4.1. In considering the applicability of other Diagnostic Codes, the Board finds that Diagnostic Codes 5270 (ankylosis of the ankle), 5272 (ankylosis of the subastralgar or tarsal joint), 5273 (malunion of the os calcis or astralgus), and 5274 (astralgalectomy), are not applicable as the competent evidence does not establish ankylosis, malunion or astralgalectomy. The May 2009 VA examination report specifically notes no ankylosis. Accordingly, these Diagnostic Codes do not serve as the basis for an increased rating. A determination as to the degree of impairment due to service-connected disability requires competent evidence. The Veteran is competent to report her symptoms, to include pain. Her lay opinion, alone, however, is not sufficient upon which to base a determination as to the degree of impairment due to the history of a right tibia stress fracture. Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record, to include the opinions to the contrary. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board has accorded more probative value to the competent VA medical opinions. The examiners reviewed the claims file, the opinions are consistent and based on objective findings and reliable principles. In reaching a determination, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran or her representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no other provision upon which to assign a higher rating. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Consequently, the benefit sought on appeal is denied. Right Posterior Tibial Tenosynovitis The Veteran asserts that the degree of impairment due to her service-connected right posterior tibial tenosynovitis has increased. Having considered the evidence, the Board finds that a higher rating is not warranted. The Veteran's right posterior tibial tenosynovitis has been assigned a 10 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5024. The Board must evaluate the evidence of record since the filing of the claim for an increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 5024 directs that tenosynovitis be evaluated as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. Diagnostic Code 5271 pertains to ankle limitation of motion. At the RO hearing, the Veteran testified that she has functional impairment due to her lower extremities, to include difficulty with standing and that she had to slide down the stairs. Transcript at 4-5 (2008). In addition, a July 2008 statement from the Veteran's spouse is to the effect that the Veteran has functional impairment due to symptoms to include pain and weakness. Against this background are the VA examination reports and opinions. The January 2006 VA examination report reflects an assessment of a history of bilateral tibial tenosynovitis, not present on examination, and while a May 2006 VA treatment record notes tenderness to palpation over the posterior tibial tendons, and a May 2006 private record notes mild tenderness with palpation on the medial aspect at the tuberosity of the left navicular, no erythema, edema, or increase in temperature was noted. In addition, on VA examination in March 2008, dorsiflexion was 20 degrees and plantar flexion was 40 degrees and strength was 4/5 against resistance. On VA examination in May 2009, dorsiflexion of the right ankle was 20 degrees, plantar flexion was 40 degrees, and inversion and eversion were normal. These findings do not establish more than a moderate degree of impairment due to right posterior tibial tenosynovitis, and thus, the criteria for a higher rating under Diagnostic Code 5270 have not been met. In reaching a determination in this case, the Board has considered the assertions in regard to functional impairment. The Board notes that while the March 2008 VA examiner reported that the Veteran was walking slowly with a cane, it was noted that she was favoring the left lower extremity, and while limitation in prolonged standing and walking due to chronic posterior tibial tendonitis of both ankles and feet was noted, no additional functional impairment due to pain, weakness, fatigue, lack of endurance after repetitive motion, incoordination or flare-up was reported. The February 2009 VA examination report reflects the Veteran refused to do squatting secondary to pain in the feet. The Board notes that the Veteran's service-connected disabilities include bilateral pes planus and right knee chondromalacia, and evaluation of the same manifestation under different diagnoses, a practice known as "pyramiding," is to be avoided. See 38 C.F.R. § 4.14. Regardless, the March 2008 VA examination report notes no adverse impact on activities of daily living due to the service-connected lower extremity disabilities, such as personal grooming and hygiene, or transportation. The May 2009 VA examination report notes that the Veteran was not unsteady and able to perform her activities of daily living, and while tandem gait was mildly to moderately unsteady and a mild swaying on Romberg was noted, no requirement of an assistive device was reported and no objective evidence of pain on motion was reported. Strength of the lower extremities was 5/5 and neurological examination was normal. In addition, the May 2009 VA report of examination notes diffuse swelling of the ankles was mild and diffuse tenderness was moderate. The report of examination notes no additional functional impairment during flare-ups, which were noted to occur daily and to be of a moderate degree of severity. The competent and probative evidence does not establish more than a marked degree of impairment due to the right posterior tibial tenosynovitis. To the extent that sedentary work has been recommended, the May 2009 VA examiner stated that the Veteran was able to do her usual job. Regardless, the 10 percent evaluation assigned contemplates the degree of impairment in earning capacity, if any, including loss of time from exacerbations due to the service-connected left posterior tibial tenosynovitis. 38 C.F.R. § 4.1. A determination as to the degree of impairment due to service-connected disability requires competent evidence. The Veteran is competent to report her symptoms, to include pain. Her lay opinion, alone, however, is not sufficient upon which to base a determination as to the degree of impairment due to right posterior tibial tenosynovitis. Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board has accorded more probative value to the competent VA medical opinions. The VA examiners reviewed the claims file, the opinions are not inconsistent with the private reports, and the opinions are based on objective findings and reliable principles. In considering the applicability of other Diagnostic Codes, the Board finds that Diagnostic Codes 5270 (ankylosis of the ankle), 5272 (ankylosis of the subastralgar or tarsal joint), 5273 (malunion of the os calcis or astralgus), and 5274 (astralgalectomy), are not applicable as the competent evidence does not establish ankylosis, malunion or astralgalectomy. The May 2009 VA examination report specifically notes no ankylosis. Accordingly, these Diagnostic Codes do not serve as the basis for an increased rating. In reaching a determination, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran or her representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no other provision upon which to assign a higher rating during any portion of the appeal period. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Consequently, the benefit sought on appeal is denied. Other Considerations The Board has considered whether the Veteran is entitled to a greater level or levels of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service- connected disabilities are inadequate. A comparison between the level of severity and symptomatology of the service- connected disabilities with the established criteria found in the rating schedule under the appropriate Diagnostic Codes shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology. Higher ratings are available if additional symptomatology is demonstrated. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER An evaluation of 30 percent for bilateral pes planus is granted, subject to the controlling regulations applicable to the payment of monetary benefits. A compensable rating for a history of a stress fracture of the right tibia is denied. A rating in excess of 10 percent, during the relevant periods, for left posterior tibial tenosynovitis is denied. A rating in excess of 10 percent for right posterior tibial tenosynovitis is denied. ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs