Citation Nr: 1615242 Decision Date: 04/14/16 Archive Date: 04/26/16 DOCKET NO. 09-16 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a disability evaluation in excess of 20 percent for service-connected varicose veins of the left lower extremity. 2. Entitlement to a disability evaluation in excess of 10 percent for service-connected bilateral pes planus, prior to January 2014, and in excess of 50 percent, thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran served on active duty from September 1988 to March 1993. This matter comes to the Board of Veterans' Appeals(Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction is currently with the RO in Cleveland, Ohio. The Veteran testified before the undersigned Veterans Law Judge at a June 2014 Travel Board hearing, and a transcript of this hearing is of record. These claims were remanded by the Board in July 2014 and October 2015 in order to provide the Veteran with additional VA examinations. The Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In December 2015, the Agency of Original Jurisdiction (AOJ) increased the rating for bilateral pes planus to 50 percent disabling effective June 17, 2014, which is the maximum under Diagnostic Code 5276. While this is the maximum possible benefit, it did not cover the entirety of the appeal period, and so the issue of an increased rating prior to June 17, 2014 is still pending. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (holding that a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Additionally, the Veteran has expressed disagreement with the effective date for the 50 percent rating, but, as stated above, this issue is already on appeal, inasmuch as the Board is required to consider whether staged ratings are warranted and to consider the evaluation for the entire period on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The issues of entitlement to ratings in excess of 10 percent for right and left patellofemoral syndrome have been raised by the record in a December 2015 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDINGS OF FACT 1. The Veteran's varicose veins of the left lower extremity have been productive of symptoms including stasis dermatitis, pain, and intermittent edema relieved by rest, but no ulcerations. 2. Prior to June 17, 2014, the Veteran's bilateral pes planus has been productive of severe symptoms. 3. Since June 17, 2014, the Veteran has been in receipt of the maximum schedular rating available for bilateral pes planus. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 20 percent for varicose veins of the left lower extremity have not been met at any time during the period on appeal. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.104, Diagnostic Code 7120 (2015). 2. For the period on appeal prior to June 17, 2014, the schedular criteria for a rating of 30 percent, but not higher, for bilateral pes planus have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2015). 3. The criteria for a disability rating in excess of 50 percent rating for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Prior to the November 2008 rating decision, a letter dated in September 2008 satisfied the duty to notify provisions with regard to increased rating claims. VA's notice duties have been fulfilled. With regard to the duty to assist, the Veteran's service treatment records and pertinent post-service treatment records have been associated with the record. Moreover, the Veteran was afforded VA examinations in October 2008, July 2011, and May 2015. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the October 2008, July 2011, and May 2015 VA examinations of record are adequate and addressed all the relevant rating criteria for varicose veins and pes planus. Pursuant to the October 2015 Board remand, November 2015 VA examinations were conducted and the VA examination reports have been associated with the file. Therefore, there has been compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The Board finds that VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4). VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran has not indicated any worsening in his varicose veins or pes planus since his last VA examination and no outstanding evidence that needs to be obtained has been identified. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran, and no further action is necessary to assist the Veteran in substantiating this claim. Analysis Disability evaluations are governed by VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2015). The percentage ratings in the Rating Schedule represent the "average impairment in earning capacity" resulting from service-connected disabilities, and residuals thereof, in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2015). When assigning a disability rating, the Board must consider the potential application of any applicable regulation governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). During an evaluation, the symptomatology of a veteran's service-connected disability is compared with criteria set forth in the Rating Schedule and a percentage rating is assessed. 38 C.F.R., Part 4. If more than one percentage rating could apply, the higher one will be assigned if the disability picture more nearly approximates the required criteria for that rating. 38 C.F.R. § 4.7. Evaluating the same disability or manifestation under different diagnoses and using manifestations not resulting from service-connected disease or injury must be avoided. 38 C.F.R. § 4.14. If, however, multiple diagnostic codes each require "distinct and separate" symptomatology that does not duplicate or overlap with symptomatology required in the other diagnostic codes, a veteran may be assessed multiple ratings. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Where entitlement to compensation already has 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 entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart, 21 Vet. App. at 509; see also 38 U.S.C.A. § 5110(b)(2) (West 2014); 38 C.F.R. § 3.400(o)(2) (2015). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. When deciding a case, the Board must consider all evidence on both sides of an issue, base its decision on the entire record, and state the reasons or bases for any findings and conclusions on material issues of fact and law. 38 U.S.C.A. §§ 1154(a), 5107(b), 7104(a) (West 2014); 38 C.F.R. §§ 3.303(a), 3.304(b)(2), 3.307(b) (2013); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board must focus on the evidence necessary to substantiate a claim and what the evidence fails to show, and, in doing so, explain why any material evidence favorable to the claimant was rejected or given little weight. 38 U.S.C.A. § 7104(d)(1); Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). But see Dela Cruz v. Principi, 15 Vet. App. 143, 148-149 (2001) (finding that the Board need not discuss every piece of evidence in the record). If VA determines that a preponderance of the evidence supports a claim, or if the claim is in relative equipoise, the claimant shall prevail. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, the claim will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. Left leg varicose veins Service connection for left leg varicose veins was granted in a February 2000 rating decision with an initial 10 percent evaluation assigned, effective June 16, 1999, using Diagnostic Code 7120. In a September 2005 rating decision, a 20 percent evaluation was assigned for the left leg varicose veins effective October 13, 2004. In the November 2008 rating decision, the RO continued the 20 percent rating assigned. 38 C.F.R. § 4.104, Diagnostic Code 7120, provides for a 20 percent rating is assigned for varicose veins with persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. Id. A 40 percent evaluation is assigned for varicose veins with persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. Id. A 60 percent rating is assigned for varicose veins with persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. Id. A 100 percent rating where there is evidence of varicose veins with massive, board-like edema with constant pain at rest. Id. A Note under the revised Diagnostic Code 7120 states that these evaluations are for involvement of a single extremity. If more than one extremity is involved, evaluate each extremity separately and combine (under § 4.25) using the bilateral factor (§ 4.26) if applicable. Id. A VA examination was performed in October 2008. At that time, it was noted that there had not been any surgery in the veins; the only treatment the Veteran used was rest and elevation. The Veteran reported having pain and swelling that were worse with standing. He further indicated that once the swelling resolves, he has a burning itching sensation in the back of the left knee. The examiner noted that exercise is limited by the varicose vein and medication gives temporary relief. The Veteran reported developing pain after standing or walking for approximately 30 minutes, and swelling after about an hour. He could only do running, treadmill work, and cutting the lawn for about 15 to 20 minutes before he develops pain, swelling, achiness, and burning sensation. The Veteran's symptoms were relieved with sitting and elevation. However, after sitting, he developed some tingling sensation and some burning. Upon physical examination, there were large ropy varicosities behind the left knee in the popliteal fossa which extended medially to the superior 1/3 of the left lower extremity. There was some pain and tenderness with deep palpation to the varicosities. Homan sign was negative and there was no eczema, board like rigidity, or edema. There was a small area of stasis dermatitis present in the medial malleolus. During the June 2014 Board hearing, the Veteran reported that he was diagnosed with edema four to eight times a year. He also stated that ulcerations tend to show up in his left leg as well. Another VA examination was performed in November 2015. At that time, the Veteran's left leg varicose veins appeared ropy, and he reported that sometimes after walking for some time it gets very sore feels like its burning and looks pink. Upon examination, a compressible varicose vein in the posterior aspect of left knee-popliteal region was noted. There was no edema, skin changes, or hyperpigmentation. Pulses distal to the varicose vein were 2+ (normal). The examiner noted that the Veteran does not have any other pertinent physical findings, complications, conditions, or signs or symptoms related to his varicose veins. The Veteran's varicose vein more closely approximates the rating criteria of 20 percent for the period on appeal. VA examination reports reflect the Veteran experiences pain and stasis dermatitis, and that his symptoms are relieved by rest. The Veteran has also indicated that he experiences edema and ulcerations. However, these finding have not been objectively observed. Thus persistent edema has not been shown. Additionally, although stasis dermatitis was noted, stasis pigmentation has not been shown. A higher rating of 40 percent is not warranted because there is no evidence of persistent edema or stasis pigmentation. Bilateral pes planus Service connection for bilateral pes planus was granted in a February 2000 rating decision with an initial 10 percent evaluation assigned, effective June 16, 1999, using Diagnostic Code 5276 pertaining to flatfeet. 38 C.F.R. § 4.71a (2015). In the November 2008 rating decision, the RO continued the 10 percent rating assigned. As noted above, in a December 2015 rating decision, the AOJ assigned a 50 percent evaluation, effective June 17, 2014. Under Diagnostic Code 5276, bilateral acquired flatfoot is assigned a 10 percent rating when moderate; weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet. A 30 percent rating is assigned when severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 50 percent rating is assigned when pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. An October 2008 VA examination report reflects that the Veteran complained of having pains and fatigability in both feet, worse with prolonged walking and standing at that time. He also stated that he develops tingling of the toes if he sits longer than 30 minutes, but otherwise did not report pain at rest. The Veteran commented that shoe inserts worn prior made the pains of the feet worse. Examination of the feet showed no ulcerations, however there was flattening of the medial arch area with tenderness extending through the arch area to the dorsal aspect of the both. Callous formation was present on the plantar aspect of both heels. Neurovascularly both feet were intact. Achilles tendons were normal in alignment, although there was some pain of the distal aspect of the Achilles tendon at the calcaneal insertion with manipulation. According to a July 2011 VA examination, it was noted that the Veteran still gets foot pain, including some burning pain in the bottom of both feet. Prolonged standing and walking bother and irritate them. Upon examination, there was some tenderness over the plantar surfaces of both feet and slight pronation of his feet. The examiner stated that the Veteran can stand and walk normally and that Achilles tendons were aligned. There was mild pain with manipulation of both feet. A March 2011 private treatment report reflects that the Veteran has bilateral flat feet and upon examination, he had marked standing pes planovalgus bilaterally. In a March 2012 private treatment report, the Veteran described experiencing some cramping sensations in his feet occasionally, and also some numbness and burning sensations in his feet. It was also noted that he does not have a significant quality to his pain. X-rays showed pes planovalgus deformity, but joint space was well maintained. It was also noted that the Veteran had some minor tenderness in his sinus tarsi regions, but overall good subtalar range of motion. The examiner noted that he was unable to reproduce any neuritic symptoms and that there was no tenderness along the anteromedial tuberosity of his calcaneus. The examiner opined that the Veteran "merely has longstanding pes planovalgus deformities with some neuritic symptoms of unclear etiology." He was advised to attempt custom orthotics with some medial posting and return as needed. During the June 2014 Board hearing, the Veteran reported that his pain had become more constant and that his bilateral pes planus was extremely painful. According to a subsequent November 2015 VA examination report, the Veteran indicated that the pain had increased from intermittent to constant. He was noted to have pain on use, pain accentuated on use, and extreme tenderness of both feet at that time. There was no pain on manipulation, indication of swelling on use, characteristic calluses, evidence of marked deformity, decreased longitudinal height, or marked pronation of either foot. Additionally, the weight bearing line did not fall over to or medial to the great toe in either foot and there was no other lower extremity deformity causing alteration of the weight bearing line. There was no inward bowing or marked inward displacement and sever spasm of the Achilles tendon, including on manipulation, of either foot. Although the Veteran has not manifested all the symptoms associated with an increased rating of 30 percent under Diagnostic Code 5276, the Board finds that his bilateral pes planus most nearly approximates a severe level of disability for the period on appeal prior to June 17, 2014. Given the above findings for the period prior to June 17,2 014, including pronation, pain on use and manipulation, and callosities the Board finds that the Veteran's bilateral pes planus warrants an increased rating of 30 percent. A rating in excess of 30 percent is not warranted, however, as there is no evidence the Veteran's disability most nearly approximated pronounced level of disability prior to June 17, 2014. There are no findings of marked pronation, extreme tenderness, marked inward displacement or severe spasm prior to June 17, 2014. His disability was noted to be marked in March 2011, which is specifically contemplated by the 30 percent rating. While the Veteran consistently endorsed pain and tenderness, these were noted to be mild and minor in nature or not having a significant quality. See July 2011 VA examination report and March 2012 private treatment report. The Board notes that symptomatology fluctuates with time and the severity of symptomatology increased over time and not on a specific particular date. However, while the Veteran described his feet as extremely painful during the June 2014 Board hearing and subsequent 2015 VA examination report, VA examinations and private treatment reports reflect mild or minor pain prior to June 17, 2014. The Board finds that the findings and statements regarding mild and minor pain and tenderness when seeking treatment are credible and probative regarding the period prior to June 17,2014. Cf. generally, Federal Rules of Evidence, Rule 803(4) (Statements made for purposes of medical treatment are not hearsay since the a patient has an interest in telling the truth in order to get better.) A rating in excess of 30 percent is therefore not warranted for the period on appeal prior to June 17, 2014 under Diagnostic Code 5276. The Board has also considered whether there is any other basis for granting a higher rating other than that discussed above, but has found none. As Diagnostic Code 5284, pertaining to foot injuries, provides a maximum rating of 30 percent, use of this diagnostic code would not result in a higher rating. Also, increased ratings are not warranted under Diagnostic Codes 5277, 5278, or 5283, as there is no evidence of weak feet, claw foot, or malunion or nonunion of the metatarsal bones. The preponderance of the evidence is against a rating in excess of 30 percent for bilateral pes planus prior to June 2014. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. From June 17, 2014, the Veteran has the maximum schedular rating available for bilateral pes planus. Thus, the Board finds that a schedular rating in excess of 50 percent cannot be granted. The issue of the Veteran's entitlement to an extraschedular rating for bilateral pes planus is addressed below. Extraschedular Consideration The Board has also considered whether the Veteran's disabilities present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). The Board finds that the rating criteria contemplate the Veteran's disabilities. In this case, comparing the Veteran's symptomatology to the rating schedule, the degree of disability throughout the period under consideration is contemplated by the rating schedule. The noted symptoms of left leg varicose veins of status dermatitis and complaints of edema, with symptoms relieved by rest and elevation and without ulcerations, directly correspond to the schedule criteria for the 20 percent evaluation. The Veteran's bilateral pes planus, prior to June 17, 2014, was manifested by marked deformity and symptoms such as pain and limitations on walking and standing. From July 17 2014, the Veteran's bilateral pes planus has additionally been manifested by extreme tenderness. These manifestations are all contemplated in the rating criteria. While the Veteran has reported burning and tingling, the March 2012 private examiner indicated that the Veteran has neuritic symptoms of unclear etiology. These symptoms have not been attributed to his service-connected varicose veins or pes planus. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. Further, according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b) ] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. Further, a claim for a total rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes, however, that the evidence demonstrates that the Veteran's left leg varicose veins and bilateral pes planus do not impact his ability to perform occupational tasks, although prolonged standing and walking do increase the pains in his feet. See October 2008, July 2011, and November 2015 VA examination reports. As such, the issue of TDIU is not raised in this case. ORDER Entitlement to an increased rating in excess of 20 percent for left leg varicose veins is denied. Prior to June 17, 2014, entitlement to a 30 percent rating, but no higher, for bilateral pes planus is granted. From June 17, 2014, entitlement to a rating in excess of 50 percent rating for bilateral pes planus is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs