Citation Nr: 0815046 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 05-11 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 30 percent for pes planus. 2. Entitlement to service connection for residuals of a cold weather injury to the feet. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The veteran served on active duty from June 1944 to July 1945. This case comes to the Board of Veterans' Appeals (Board) from a rating decision of the Montgomery, Alabama Regional Office (RO). FINDINGS OF FACT 1. For the entire period on appeal, the veteran's pes planus has been manifested by symptoms no more than severe in nature bilaterally. 2. The evidence does not support the conclusion that the claimed residuals of a cold weather injury to his feet is related to the veteran's active service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for pes planus have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.1a Diagnostic Codes (DCs) 5276, 5278 (2007). 2. Residuals of a cold weather injury to the feet were not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1113, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA 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) (2007). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). With regards to the claim for service connection, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post- decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied, all but the elements of service connection, prior to the initial RO decision by way of a letter sent in June 2004. Subsequent to the initial RO decision, the veteran indicated actual knowledge of the elements of service connection in his written statements. As a result of the combination of the incomplete notification letter in addition to the veteran's actual knowledge of the elements of service connection, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). With respect to the Dingess requirements for the service connection claim, in November 2007 the RO provided the veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. With regard to the claim for increased rating, § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05- 0355 (U.S. Vet. App. January 30, 2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores, slip op. at 5-6. In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the veteran in June 2004, prior to the initial RO decision that is the subject of this appeal. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. Moreover, with respect to the Dingess requirements, the veteran was given notice of what type of information and evidence he needed to substantiate his claim for an increased rating as this is the premise of the claim. It is therefore inherent that the he had actual knowledge of the rating element of the claim. In addition, he was provided with notice of the type of evidence necessary to establish an effective date for the disability on appeal by correspondence dated in November 2007. Any questions as to the appropriate effective date to be assigned are moot as the claim has been denied. The Board acknowledges that the VCAA letter sent to the veteran in June 2004 and November 2007 do not meet the requirements of Vazquez-Flores and are not sufficient as to content and timing, creating a presumption of prejudice. Nonetheless, such presumption has been overcome for the reasons discussed below. In this case, the veteran was provided with correspondence regarding what was needed to support his claim. Specifically, the November 2007 letter specifically asked the veteran to include evidence of how his disability affects his employment and the statement of the case issued in March 2006 included the language from the appropriate diagnostic code under which the veteran is rated. Based on the evidence above, the veteran can be expected to understand from the various letters from the RO what was needed to support his claim. Moreover, the veteran demonstrated actual knowledge of what was needed to support his claim as reflected in his statements and correspondence. Specifically, in his notice of disagreement submitted in October 2004, the veteran indicated that his foot condition required him to use a cane and that his condition was more severe than his current disability rating indicated. Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records and he was afforded two VA medical examinations. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating for Pes Planus Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining the level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Here, the veteran is rated as 30 percent disabled for pes planus under 38 C.F.R. § 4.71a DC 5276 for acquired flatfoot. In order for the veteran to be entitled to a rating higher than 30 percent, the evidence must show either of the following: * bilateral pronounced flat foot with marked pronation, extreme tenderness pf plantar surfaces, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances (DC 5276); or, * bilateral claw foot with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity (DC 5278). Also to be considered in evaluating musculoskeletal disabilities based on limitation of motion, the Board must assess functional impairment and determine the extent to which a service connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Ratings based on limitation of motion do not subsume the various rating factors in 38 C.F.R. §§ 4.40 and 4.45, which include pain, more motion than normal, less motion than normal, incoordination, weakness, and fatigability. These regulations, and the prohibition against pyramiding in 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206- 08 (1995). In other words, when rated for limitation of motion, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. A finding of functional loss due to pain must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." 38 C.F.R. § 4.40. Here, the veteran's feet were examined at two VA examinations discussed below. Additionally, the veteran's VA treatment records indicate treatment for pes planus and foot pain for the period on appeal. At the first VA examination, conducted in July 2004, the veteran reported not wearing orthotics but used a cane for balance. No weakness or fatigability was indicated and the veteran reported pain of 0 out of 10 and full range of motion. Symptomatology indicative of the diagnosis of mild functional impairment was a mildly deviated Achilles tendon, left worse than right, and mild degenerative changes on x- ray. The second VA examination, conducted in October 2005, yielded similar results but the veteran did report pain on palpitation noted as minimal tenderness to the plantar fascia bilaterally. Pes planus and plantar fasciitis were diagnosed. The veteran's bilateral flatfoot has been manifested by pain, minimal tenderness on palpitation, mildly deviated Achilles tendons, and an overall mild functional impairment. As the veteran has been diagnosed with claw foot in any way and his symptoms of bilateral flat foot are not so pronounced as to more nearly approximate a rating in excess of 30 percent, the veteran's claim is denied. With regards to the claim for increased rating, the Board has considered the veteran's statements and sworn testimony regarding his service-connected disability on appeal. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno, 6 Vet. App. at 470. As a lay person, however, he is not competent to offer opinions on medical diagnosis, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). As noted, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. The Board finds that the medical findings, which directly address the criteria under which the service- connected disability is evaluated, more probative than the subjective evidence of an increased disability. Lastly, in reaching this decision, the potential application of various provisions of Title 38 of the Code of Federal Regulations have been considered, whether or not they were raised by the appellant, as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1). The Board finds that the evidence of record does not present "an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). In this case, there has been no assertion or showing by the appellant that his service-connected disability has necessitated frequent periods of hospitalization. While the appellant may assert that his disability has interfered with his employability, the evidence of record simply does not support a conclusion that any such impairment is beyond that already contemplated by the applicable schedular criteria. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). In the absence of the factors set forth above, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Service Connection for Residuals of a Cold Weather Injury to the Feet The veteran claims that in addition to his service-connected bilateral pes planus, he should be service-connected for residuals of a cold weather injury to the feet incurred in service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Moreover, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran's service medical records reflect no treatment for a cold weather injury of any kind. While they do indicate treatment and subsequent discharge related to second degree pes planus, he is already service-connected for that disability. No indication of a cold weather injury in service is made other than the veteran's own statements. Other than the diagnosis of the already service-connected bilateral pes planus, the veteran has been diagnosed with plantar fasciitis and onchomycosis (October 2005 VA examination). Neither of these diagnoses have been related to the reported cold weather injury by a medical professional. Specifically, the October 2005 VA examiner noted that, on review of the veteran's service medical records, there was no specific documentation or treated related to a cold injury or frostbite while on active duty. As such, the examiner found that it was not at least as likely as not that the veteran's current bilateral foot conditions were related to his service or the claimed cold exposure in service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board has considered the statements made by the veteran that he incurred a cold weather injury in service. In this vein, lay evidence concerning a symptom for which no medical knowledge is necessary, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). While the veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. at 470. As a lay person, however, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). The issue of a cold weather injury is more than a mere symptom that comes to the veteran through his senses and is rather a diagnosis requiring medical knowledge that the veteran is not competent to make. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER A rating in excess of 30 percent for pes planus is denied. Service connection for residuals of a cold weather injury to the feet is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs