Citation Nr: 1127711	
Decision Date: 07/25/11    Archive Date: 08/02/11

DOCKET NO.  06-19 412	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas



THE ISSUE

Entitlement to a higher initial rating for bilateral pes cavus with chronic plantar fasciitis, rated as noncompensable from June 30, 2003 to October 27, 2004 with separate 10 percent ratings for each foot in effect since October 28, 2004.



REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.



ATTORNEY FOR THE BOARD

T. Mainelli, Counsel

INTRODUCTION

The Veteran served on active duty from June 1999 to June 2003.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.  The RO in Houston, Texas currently holds jurisdiction over the claims.

In October 2006, the Veteran withdrew her request for a hearing before the Board.

In October 2009, the Board remanded the case to the RO, via the Appeals Management Center (AMC), in Washington, DC., for further evidentiary development.

The Board notes that the RO certified for appeal a claim of entitlement to an effective date earlier than October 28, 2004 for the award of a 10 percent rating for bilateral plantar fasciitis.  As addressed in more detail below, the Board has rephrased the issues on the title page to better reflect that the Veteran's claim involves an initial rating issue with staged ratings.


FINDING OF FACT

For the entire appeal period, the Veteran's service-connected bilateral foot disability has been manifested by dramatic pes cavus causing chronic plantar fasciitis due to collapse of the pes cavus and stress on the plantar fascia which is refractory to treatment; the overall resultant disability of painful motion and tenderness at the arches with fatigability on use more nearly approximates the criteria for 30 percent rating under Diagnostic Code (DC) 5278.



CONCLUSION OF LAW

The criteria for a 30 percent rating, but no higher, for service-connected bilateral pes cavus with chronic plantar fasciitis have been met for the entire appeal period.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b), 4.1-4.14, 4.20, 4.71a, DCs 5276, 5278 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks a 30 percent disability rating for her service-connected bilateral foot disability effective to the date of her discharge from active service.  See VA Form 21-4138 received in January 2008.

At the outset, the Board must address its jurisdiction over the claims certified for appeal by the RO.  The RO has certified the issues on appeal as entitlement to an increased rating for bilateral foot disability, and entitlement to an effective date earlier than October 28, 2004 for the award of increased compensation.

The Veteran was discharged from active service in June 2003.  She filed her original claim for VA compensation in January 2004.  By rating action dated June 2004, the RO granted service connection for bilateral foot disability and assigned an initial noncompensable rating effective to June 30, 2003, the date following service discharge.  See 38 U.S.C.A. § 5110(b)(1) (the effective date of an award of disability compensation to a veteran shall be the day following the date of discharge if the application is received within one year from such date of discharge).

By letter dated July 7, 2004, the Veteran was provided notice of the January 2004 rating decision and her appellate rights but she did not submit a timely notice of disagreement (NOD).  See 38 C.F.R. § 20.302 (a) (an NOD must be filed within one year from the date of notice of decision).  As such, the RO has determined that finality attaches to the assignment of both the initial rating and the effective date of award.  38 U.S.C.A. § 7105; 38 C.F.R. § 3.104.  See generally Rudd v. Nicholson, 20 Vet. App. 296 (2006) (barring de novo consideration of effective dates after finality attached to a VA decision).

In December 2004, the Veteran submitted to the RO VA treatment records pertaining to bilateral foot disability with a request that the RO accept these documents as "new and material evidence in accordance with 38 CFR § 3.156."

In response, the RO issued a June 2005 rating decision awarding a 10 percent disability rating for bilateral foot disability effective October 28, 2004.  In so deciding, the RO accepted an October 28, 1994 VA clinical record submitted with the Veteran's December 2004 submission of documents as constituting an informal claim for an increase, which has been used as the effective date of award for the claim appealed to the Board.  See generally 38 C.F.R. § 3.157(b)(1) (the date of outpatient VA examination may be accepted as the date of claim for increased compensation).

Generally, the RO's jurisdictional finding in this case requires the Veteran to establish that the increased severity of her service-connected bilateral foot disability occurred during the one year period prior to the date of claim (October 2004) in order to receive the benefit of an earlier effective date.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  See generally Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997).

However, this appeal stems from the Veteran's submission of additional VA treatment records within one year of notice of the original RO rating decision that granted service connection for bilateral foot disability and assigned an initial disability rating.  

Important for this claim, the provisions of 38 C.F.R. § 3.156(b) state as follows:

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

The evidence submitted by the Veteran in December 2004 included previously unconsidered VA clinical records reflecting treatment for symptomatic bilateral foot disability.  The significance and materiality of those documents is demonstrated by the fact that the RO has accepted those documents as establishing both the basis for a newly raised claim as well as entitlement to increased compensation.  As such, the Board finds that the documents submitted in December 2004 clearly constitute new and material evidence as defined in 38 C.F.R. § 3.156(a).

As these new and material documents were filed within one year of the original rating decision, they are deemed an interim submission with respect to the original June 2004 rating decision which must be considered as part of that decision.  Buie v. Shinseki, 24 Vet. App. 242 (2011) (holding that the Board, in adjudicating an earlier effective date of award claim for compensation, erred in not considering whether statements which Veteran submitted within one year of an RO rating decision included the submission of new and material evidence pursuant to 38 C.F.R. § 3.156(b)).  See generally Jennings v. Mansfield, 509 F.3d 1362 (Fed. Cir. 2007) (holding that a claim becomes final and subject to a motion to reopen only after the appeal period has run; interim submissions before finality must be considered as part of the original claim pursuant to 38 C.F.R. § 3.156(b)).

In short, pursuant to the provisions of 38 C.F.R. § 3.156(b) and the unique facts of this case, the Board finds that the issue properly appealed to the Board concerns the appropriate initial rating assigned for bilateral foot disability.  As such, the Board must consider the appropriate disability rating for the time period from the day following the Veteran's discharge from active service (June 30, 2003) to the present.  

As a result of Buie (a recent decision of the Veteran's Court), the only "effective date" issue concerns whether the evidence warrants a "staged rating" in this case.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found). 

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  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 military service and the residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  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 evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

The words "slight," "moderate" and "severe" as used in the various DC's are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions."  38 C.F.R. § 4.6.

The Veteran was initially service-connected for a disability diagnosed as plantar fasciitis which is not specifically listed in VA's Schedule for Rating Disabilities.  In such a situation, the disability will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  38 C.F.R. § 4.20.

The RO initially rated the Veteran's plantar fasciitis as analogous to an acquired flatfoot disability, which is evaluated under DC 5276.  Under this diagnostic code, a noncompensable rating is warranted for mild disability with symptoms relieved by built-up shoe or arch support.  38 C.F.R. § 4.71a, DC 5276.  A 10 percent rating is warranted for moderate flatfeet (bilateral or unilateral) with weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet.  Id.

A severe flatfoot disability, manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, warrants a 20 percent rating if unilateral and a 30 percent rating if bilateral.  Id.  A pronounced flatfoot disability, manifested by 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, warrants a 30 percent rating if unilateral and a 50 percent rating if bilateral.  Id.

At the most recent VA examination, the VA examiner changed the diagnosis for service-connected disability to pes cavus with chronic plantar fasciitis.  Pes cavus disability is rated under its separate criteria under DC 5278, claw foot (pes cavus) acquired.  38 C.F.R. § 4.71a, DC 5278.  Under this diagnostic code, a 10 percent rating is warranted for pes cavus (unilateral or bilateral) with the great toe dorsiflexed, some limitation of dorsiflexion at ankle, and definite tenderness under metatarsal heads.  Id.

A pes cavus disability manifested by all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads warrants a 20 percent rating if unilateral and a 30 percent rating if bilateral.  Id.  A pes cavus disability manifested by marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities and marked varus deformity warrants a 30 percent rating if unilateral and a 50 percent rating if bilateral.  Id.

For reference purposes, the Schedule for Rating Disabilities defines full range of motion of the ankle as zero to 20 degrees of dorsiflexion and zero to 45 degrees of plantar flexion.  See 38 C.F.R. § 4.71a, Plate II.

Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures.  It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40.  The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement.  38 C.F.R. § 4.45.

The claimant bears the burden of presenting and supporting his/her claim for benefits.  38 U.S.C.A. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id.  Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner."  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced).  Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.

However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology.  See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson not competent to diagnose a form of cancer).  As reflected in Fed.R.Evid 701, a lay witness testimony in the form of opinions or inferences constitutes competent evidence when (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Otherwise, in matters involving scientific, technical or other specialized knowledge, Fed.R.Evid 702 requires that an opinion be provided by a witness qualified as an expert by knowledge, skill, experience, training or education.

Applying the criteria to the facts of this case, the Board finds that the criteria for an initial 30 percent rating, but no higher, have been met for the entire appeal period.  In this respect, the Veteran's service-connected bilateral foot disability has been manifested by very dramatic pes cavus causing chronic plantar fasciitis due to collapse of the pes cavus and stress on the plantar fascia which is refractory to treatment; the overall resultant disability of painful motion and tenderness at the arches with fatigability on use more nearly approximates the criteria for 30 percent rating under DC 5278.

Historically, the Veteran's service treatment records (STRs) reflect a history of left foot sprain in April 2001.  In September 2001, she reported symptoms of heel region pain with movement and stretching which was worse in the morning.  Evaluations in January and August 2002 diagnosed plantar fasciitis with clinical findings significant for mild tenderness of both arches near the heel insertion.  She denied swelling.  An October 2002 physical therapy consultation found contractile dysfunction of both big toes.  Treatment consisted of orthotics, Kenalog injections and physical therapy.

The Veteran filed her original application for VA compensation in March 2004.  At that time, she described bilateral foot pain and strain feeling that had not been relieved by treatment with orthotics and cortisone injections.  She also described being extremely prone to injury.  Her original VA Compensation and Pension (C&P) examination in March 2004 found discomfort with pressure over the middle arches of both feet, but no objective evidence of pain on movement, rigidity or calluses.  The examiner diagnosed plantar fasciitis.

Thereafter, the Veteran presented to the VA clinic in August 2004 requesting ultrasound therapy for recurrent bilateral foot symptoms (sx).  She subsequently underwent ultrasound therapy from October to December 2004 which emphasized the medial calcaneal tubercle and plantar fascia.  This therapy caused the Veteran's feet to become sensitive.  Nonetheless, she reported being active with biking, running, weight training and yoga.

In a statement received in January 2005, the Veteran reported an increase in bilateral foot tenderness over the last two months.

The Veteran underwent another VA C&P examination in March 2005, wherein she reported a progressive worsening of bilateral foot pain despite injections, orthotics, ultrasound and calf strengthening exercises.  She had been advised that there would be no expected improvement after six ultrasound treatments.  Her symptoms were only partially relieved by orthotic shoes.  With respect to functional limitations, the Veteran could stand for more than 1 hour but less than 3.  She could walk more than 1/4 of a mile but less than 1 mile.  She described pain with motion, instability, tenderness, swelling and stiffness with walking and standing.  The Veteran also experienced tenderness and stiffness while at rest.  She reported hypermobility of the ankles.  She had weekly flare-ups of disability, lasting 1 to 2 weeks in duration, which were moderate in degree.  With respect to the both feet, the Veteran described tenderness, swelling, weakness, stiffness, fatigability, pain, and lack of endurance of the arch.  She denied heat, redness, spasm, toe deformity and calluses.

On examination, the Veteran's feet demonstrated painful motion and tenderness at the arches, both of which were mild in degree.  There was no abnormal motion, crepitus, edema, effusion, fatigability, instability, mass, muscle atrophy, redness, spasm, heat, weakness, or abnormal skin.  The Veteran's gait was normal absent evidence of abnormal weight bearing.  There was no deformity or structural abnormality of the foot.  Additionally, there was no joint disease of the foot or ankle causing limitation of motion.

Overall, the examiner diagnosed bilateral plantar fasciitis noting that the Veteran appeared to tolerate pain well during toe and heel walking.  Her bilateral foot disability impacted her occupational activities due to decreased mobility, lack of stamina, pain and increased absenteeism.  She wore Z-coil shoes which allowed her to stand longer although she still experienced low grade pain.  The bilateral foot disability prevented exercise and sports, had moderate effects on chores and mild effects on recreation.  She had stopped running due to foot pain, but could still walk about a mile without pain.

In pertinent part, a June 2005 VA C&P neurology examination observed that the Veteran had a normal gait.  VA clinical evaluations in August and December 2005 noted that the Veteran's arches did not collapse on standing or weightbearing.

In a VA Form 9 filing received in April 2006, the Veteran again described a history of bilateral foot pain since service which had not improved with steroid injections, orthotics and ultrasound therapy.  She reported foot fatigue with swelling that occurred often.  She appeared to describe calluses.

An August 2006 letter from the Veteran's treating exercise physiologist and kinesiologist reported that the Veteran's health had been severely impaired the last 5 years as a result of chronic pain involving the shoulders, hands and feet.  She had obtained treatment with no results.  This examiner, who had personally experienced plantar fasciitis in the past, was well aware of the chronic pain and debilitation caused by the disorder on a daily basis.  It was indicated that the Veteran, who once completed a 50-mile ultra run, presently could not even attempt a hike longer than 15 minutes.  The Veteran's chronic problem had not been alleviated by multiple procedures such as steroid injections, physical therapy and ultrasound wave therapy.

On VA C&P examination in November 2006, the Veteran reported bilateral foot symptoms of pain with standing and walking as well as lack of endurance and fatigability with walking.  She denied swelling, heat, redness, stiffness, and weakness.  She denied flare-ups of joint disease, but reported standing limited between 15 to 30 minutes and walking limited to 1/4 mile.  On examination, the feet demonstrated no objective evidence of painful motion, swelling, tenderness, instability, weakness, abnormal weight bearing, hammertoes, hallux valgus or rigidus, skin or vascular abnormality, or muscle atrophy.  There was no foot deformity other than plantar fasciitis.  The Veteran's gait was normal.

The examiner diagnosed a remote history of plantar fasciitis by history as well as hypermobile joints.  The Veteran's bilateral foot disability had no significant effects on her occupation.  With respect to activities of daily living, the bilateral foot disability had severe effects on sports, moderate effects on exercise and recreation, and mild effects on traveling and driving.  The examiner commented that the Veteran had no limitation of motion in the feet or ankles but, rather, hypermobile joints with no complaints of pain on motion.

Thereafter, VA clinical records include a July 2007 general medical examination noting that there was no joint pain with movement of the feet.  No lesions of the right foot were noted.  

On VA C&P examination in July 2008, the Veteran described an aching pain in her feet which worsened during the day.  She experienced flare-ups primarily with wearing different shoes or with prolonged standing.  Her symptoms were partially relieved by wearing sandals and stretching exercises throughout the day.  The Veteran was limited in the extent of her walking and standing, and had stopped running altogether.  She reported that her disability did not really affect her employability as she was able to sit frequently.  However, the pain she experienced was aggravating.

On examination, the Veteran's ankles plantar flexed to 55 degrees and dorsiflexed to 15 degrees.  The feet supinated to 35 degrees, and pronated to 20 degrees.  On repeat plantar flexion and dorsiflexion, the ankles supinated and pronated to the feet and posed no indication of pain, weakness or fatigue.  There was no plantar fascia tenderness at the calcaneuous, the barge or metatarsal heads.  There was no tenderness or swelling of the Achilles' tendons.  The examiner indicated that the Veteran did not have pes planus but rather pes cavus, manifested by a very dramatic arch bilaterally.  The Veteran walked without indication of a limp.  X-ray examination was significant for a type II accessory navicular of both feet.  The examiner offered the following assessment:

ASSESSMENT:  Pes cavus with chronic plantar fascial irritation causing chronic plantar fasciitis.  

A remark on what the veteran is service-connected for.  The veteran does not have classical plantar fasciitis.  Classical plantar fasciitis is worse in the morning when you first get up.  It gets better during the day, and then gets worse the more you walk.  This veteran gets upon the morning and has pain that is about the same as it is throughout the day with the exception of increasing as the day goes by if she walks too much.  I do not know where the diagnosis came of pes planus but she definitely does not have pes planus, she has the opposite, pes cavus.  She really should be diagnosed with pes cavus with a substantial arch and a chronic plantar fasciitis due to collapse of the pes cavus and stress on the plantar fascia.  So the problem really is involved with her pes cavus which causes her to have chronic plantar fasciitis.

As acknowledged by the RO, the July 2008 VA examiner's opinion reflected a change of diagnosis of the Veteran's service-connected disability from plantar fasciitis to pes cavus causing plantar fasciitis.  The prior examination reports do not describe pes cavus disability, although the Board notes that STRs did reference contractile dysfunction of both big toes.

As instructed in 38 C.F.R. § 4.2, the Board must be cognizant that different examiners may not describe the same disability features in the same language.  As such, it is the responsibility of the Board to interpret the reports of examination in light of the whole evidentiary record, reconciling the various reports into a consistent disability picture.  38 C.F.R. § 4.2.

Historically, the Board does not find any lay or medical evidence suggesting that the Veteran's disability picture significantly changed for any time during the appeal period.  While the Veteran's pain complaints may have increased, the overall clinical findings do not demonstrate any appreciable change.  The Board will interpret the evidentiary record to establish the existence of pes cavus since the inception of the appeal.

The evidence in this case includes the Veteran's consistent reports of bilateral foot pain refractory to treatment which has included orthotics, injections, ultrasound wave therapy and calf strengthening exercises.  The Veteran's descriptions of painful motion with fatigability on use are credible and consistent with the evidentiary record, which documents her numerous attempts to alleviate her symptomatology.

The July 2008 VA examiner described the Veteran as having "very dramatic" pes cavus which causes chronic plantar fasciitis due to collapse of the pes cavus and stress on the plantar fascia.  This finding is consistent with a 30 percent rating under DC 5278, which contemplates shortened plantar fascia bilaterally.  

However, the Veteran does not manifest toes tending to dorsiflexion, limitation of right ankle motion (she has a diagnosed hypermobility disability) or marked tenderness under metatarsal heads.  

Nonetheless, the Board reconciles the varying clinical descriptions in a light most favorable to the Veteran and finds that her bilateral foot disability more nearly approximates the criteria for a 30 percent rating under DC 5278.  This rating contemplates the Veteran's credible report of functional impairment on use of the feet.  38 C.F.R. §§ 4.40 and 4.45.  Thus, a 30 percent evaluation is warranted for the entire appeal period.

Notably, the Board's award of a 30 percent rating satisfies this appeal.  In a VA Form 21-4138 received in January 2008, the Veteran's represented asserted as follows:

Veteran states that a grant of 30% with an earlier effective date will satisfy her appeal.

The Board finds that this clear statement of intent to limit the appeal is not otherwise qualified by any subsequent statements or argument of record.  As such, the Board has no authority to adjudicate this claim any further.  Hamilton v. Brown, 4 Vet. App. 528, 544 (1993); AB v. Brown, 6 Vet. App. 35, 39 (1993).

To the extent that the Veteran's intent can be interpreted otherwise, the Board nevertheless notes that the criteria for a rating greater than 30 percent for bilateral foot disability have not been met for any time during the appeal period.  In this respect, the clinical findings have not demonstrated dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity or pes planus.  As held above, the Board has considered the Veteran's report of functional impairment on use of the feet as supporting the 30 percent rating with use of the approximating principles.

Notably, the Veteran herself does not appear to describe the aspects of disability supporting a 60 percent rating other than reported callosities which have not been demonstrated on any of the numerous examinations.  To the extent that her arguments and statements could be construed as describing these elements of disability, the Board finds that the clinical descriptions of these factors greatly outweigh the lay descriptions, as the private and VA physicians have greater expertise and training than the Veteran in evaluating and describing these aspects of bilateral foot disability.

In sum, the Board finds that the criteria for a 30 percent rating, but no higher, for bilateral foot disability have been met for the entire appeal period.  In so deciding, the Board has applied the approximating principles of 38 C.F.R. § 4.7 as well as the benefit of the doubt rule under 38 U.S.C.A. § 5107(b) in favor of the Veteran.  However, the preponderance of the evidence is against a higher rating still.  There is no further basis for application of the benefit of the doubt.

In this regard, it is important to note that this claim is being granted, in large part, based on the Veteran's lay statement and the credibility the Board has placed in those statements.  If there is any forthcoming indication that the Veteran has somehow exaggerated her complaints (regarding any claim), such indications would have a very negative impact on the determination that her disability warrants a 30% evaluation.

To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b)(1).

The provisions of 38 C.F.R. § 3.321(b) state as follows:

Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities.  The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards.

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.  Id.

If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule.  See VAOPGCPREC 6-96 (Aug. 16, 1996).

In Thun, the Court further explained that the actual wages earned by a particular veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability.  The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress.

The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance.  However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

In this case, the Veteran has been assigned a 30 percent rating for service-connected pes cavus disability under DC 5278.  A higher rating is potentially available, but the credible lay and medical evidence does not demonstrate aspects of disability described for a higher rating.  In assigning a 30 percent rating, the Board applied the principles of 38 C.F.R. § 4.7 in favor of the Veteran, which recognizes that the Veteran does not meet all of the criteria for a 30 percent rating but has some features of this level of disability which may be determined to more nearly approximate the level of disability.  This rating was based, in part, upon her credible report of functional impairment on use.  Overall, the Board finds no credible and competent evidence demonstrating unusual aspects of this disability not contemplated in this approximated award of disability benefits.

As the assigned schedular evaluation is adequate, there is no basis for extraschedular referral in this case.  See Thun, 22 Vet. App. 111, 114-15 (2008). 

The Veteran has not alleged unemployability due to her bilateral foot disability.  As held above, the Veteran indicated that her appeal would be satisfied with the award of a 30 percent rating effective to the date of her discharge from active service.  As such, the issue of entitlement to a total disability rating based upon individual unemployability has not been reasonably raised.  See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009).

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).

Here, the Board has determined that the Veteran is challenging the initial evaluation assigned following a grant of service connection.  In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id. at 490-91.  Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied.

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of STRs and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained the Veteran's STRs as well as private and VA clinical records.  As the Board has no information that relevant Social Security Administration disability benefits records exist, there is no duty to assist in obtaining any of these types of records.  See generally Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010).  In short, the Veteran has not referred to any additional, unobtained, available, and relevant evidence.

The Veteran was afforded VA examinations to evaluate the severity of her bilateral foot disability in March 2004, March 2005, November 2006 and November 2008.  Notably, the November 2008 VA examination report is adequate for rating purposes as it includes a thorough explanation as to the current diagnosis of the service-connected bilateral foot disability.  Since this VA examination, the Board does not find that the lay or medical evidence suggests an increased severity of symptoms to the extent that a higher schedular rating may still be possible.  Thus, there is no duty to provide further medical examination on this claim.  See VAOPGCPREC 11-95 (Apr. 7, 1995).

In sum, the Board reiterates that this award fully satisfies the Veteran's appeal as it pertains to both the disability rating and effective date of award assigned.  For the reasons expressed above, the Board finds that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist her in the development of her claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

ORDER

A 30 percent rating for service-connected bilateral pes cavus with chronic plantar fasciitis is granted.



____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs