Citation Nr: 0815124 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 07-34 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability evaluation in excess of 50 percent for bilateral pes planus. 2. Entitlement to a disability evaluation for chronic capsulitis, degenerative arthritis, of the left knee, as secondary to his service-connected bilateral pes planus, in excess of 10 percent. 3. Entitlement to a disability evaluation for chronic capsulitis, degenerative arthritis, of the right knee, as secondary to his service-connected bilateral pes planus, in excess of 10 percent. REPRESENTATION Appellant represented by: Jewish War Veterans of the United States ATTORNEY FOR THE BOARD A. Lindio, Associate Counsel INTRODUCTION The veteran had active duty service from April 1943 until January 1946. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran was granted a 10 percent disability rating for each knee from October 11, 2006, the date his claim was received, in an October 2007 rating decision; however, the veteran has not withdrawn his claim and is presumed to be seeking the maximum benefit allowed by law and regulation. AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. The veteran's bilateral pes planus is manifested by painful motion and abnormal weight bearing, Achilles alignments that were inward bowing with weight bearing, midfoot malalignment, and moderate pronation. 2. The veteran's left knee disability is manifested by a range of motion from 0 to 140 degrees, reports of pain, but no subluxation or instability. 3. The veteran's right knee disability is manifested by a range of motion from 0 to 140 degrees, reports of pain, but no subluxation or instability. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 50 percent for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5276 (2007). 2. The criteria for an evaluation in excess of a 10 percent evaluation for a left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2007). 3. The criteria for an evaluation in excess of a 10 percent evaluation for a right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist 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). For an increased-compensation claim, § 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, 22 Vet. App. 37 (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. Id. In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the veteran in November 2006, 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 claims 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 2006. 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 November 2006 does not meet the requirements of Vazquez-Flores and is 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 regard, the Board is aware of the veteran's statements in his December 2006 VA examinations in which descriptions were made of the effects of the service- connected disability on employability and daily life. These statements indicate an awareness on the part of the veteran that information about such effects, with specific examples, is necessary to substantiate a claim for a higher evaluation. Significantly, the Court in Vazquez-Flores held that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim." Id. at 48, citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). This showing of actual knowledge satisfies the first and fourth requirements of Vazquez-Flores. Additionally, and particularly in light of the veteran's lay assertions of effects of the service-connected disability on employability and daily life, the Board does not view the disorders at issue to be covered by the second requirement of Vazquez-Flores, and no further analysis in that regard is necessary. Finally, the January 2007 rating decision includes a discussion of the rating criteria utilized in the present case, and this criteria was set forth in further detail in the October 2007 Statement of the Case and again in the October 2007 rating decision regarding his knee claims. The veteran was accordingly made well aware of the requirements for an increased evaluation pursuant to the applicable diagnostic criteria, and such action thus satisfies the third notification requirement of Vazquez-Flores. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran 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. 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 VA outpatient treatment records. The veteran submitted private treatment records. The appellant was afforded VA medical examinations in December 2006 in regards to his pes planus and knee disabilities. Significantly, neither the appellant nor his or her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Applicable Law Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While the veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A recent decision of the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In addition, in evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement and weakness. 38 C.F.R. §§ 4.44, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2005). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Under Diagnostic Code 5276, a maximum 50 percent rating is in order for bilateral pes planus that is pronounced, with 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. 38 C.F.R. § 4.71a. Degenerative arthritis established by x-ray findings are evaluated under Diagnostic Code 5003, which in turn is evaluated based on the limitation of motion under the appropriate Diagnostic Code for the specific joint involved, or in this case, Diagnostic Code 5260 for limitation of leg flexion and Diagnostic Code 5261 for limitation of leg extension. Where there is x-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the Code, a 10 percent rating is for assignment for each major joint affected. 38 C.F.R. § 4.71, Diagnostic Codes 5003. The knees are considered major joints. 38 C.F.R. § 4.45. Under Diagnostic Code 5260 a noncompensable evaluation is for assignment when flexion is limited to 60 degrees, a 10 percent evaluation when flexion is limited to 45 degrees, a 20 percent evaluation when flexion is limited to 30 degrees, and a 30 percent evaluation for flexion limited to 15 degrees. A noncompensable evaluation is also for assignment when extension is limited to 5 degrees, while a 10 percent evaluation is for assignment when extension is limited to 10 degrees, a 20 percent evaluation when extension is limited to 15 degrees, a 30 percent evaluation when extension is limited to 20 degrees, a forty percent evaluation when extension is limited to 30 degrees, and a 50 percent evaluation when extension is limited to 45 degrees. Another potentially applicable regulation is Diagnostic Code 5257, under which a 10 percent evaluation would be warranted with evidence of slight recurrent subluxation or lateral instability. A 20 percent evaluation would be warranted for moderate recurrent subluxation or lateral instability. A 30 percent evaluation would only be warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Pes Planus The veteran essentially contends that his bilateral pes planus has increased in severity and warrants an evaluation in excess of 50 percent. VA outpatient treatment records have generally indicated that the veteran has received treatment for his bilateral pes planus. In his November 2006 VA examination, the veteran reported having bilateral foot pain in 1946 and that he was subsequently diagnosed with pes planus. He reported that he retired from working as a printer in 1996 due to bilateral foot pain with walking and standing. Based on his podiatrist's recommendation, he used Ecco shoes for support and no further work up or aggressive treatment was recommended. The veteran reported bilateral medial midfoot pain, with stiffness and fatigability. He lacked endurance when standing and walking in the medial midfoot bilaterally. He reported no flare ups of foot joint disease and functional limitations including an inability to stand for more than a few minutes and an inability to walk more than a few yards. He used corrective shoes and a cane, which he stopped using due to shoulder pain. The examiner found the veteran to have objective evidence of painful motion and bilateral abnormal weight bearing. There was no objective evidence of swelling, tenderness, instability, or weakness bilaterally. His left and right Achilles alignments were normal when non weight bearing, but inward bowing with weight bearing, which was also correctable with manipulation, but without pain or spasm on manipulation. There was no forefoot malalignment, but there was midfoot malalignment correctable by manipulation, which was painful. There was also moderate pronation bilaterally. His left and right foot had an arch present when non weight bearing, but not when weight bearing. There was pain on manipulation, but no muscle atrophy or deformity. Hallux valgus was also found bilaterally. X-rays found normal feet with no signs of fractures, dislocation, or arthritic changes. The veteran's bilateral pes planus caused moderate problems with his ability to perform chores, shop, and exercise, and mild problems with his ability to take part in sports and recreation. It did not cause him problems when traveling, feeding, bathing, dressing, toileting, grooming, or driving. The veteran currently has a 50 percent rating, which is the maximum schedular available for his disability. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The veteran's bilateral pes planus is rated at the maximum possible under Diagnostic Code 5276. No higher evaluations are possible in regards to a foot disability. Therefore, given the evidence, the Board finds that the preponderance of the evidence is against the veteran's claim for an evaluation in excess of 50 percent. The veteran has also put forth credible complaints of pain on use of his feet. With regard to such complaints, the Court has held that VA must consider additional functional loss on use due to pain on motion or due to flare-ups of the disability. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995). Taking all of the evidence of record into consideration, the Board finds that the appellant's bilateral pes planus is likely manifested by some functional limitation due to pain on motion. The Board notes that the 50 percent rating already granted contemplates complaints of pain, especially on extended use. There is no showing of any other functional impairment which would warrant a higher rating for the complaints of pain. 38 C.F.R. §§ 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a. In reaching this decision, the potential application of various provisions of Title 38 of the Code of Federal Regulations, including 38 C.F.R. § 3.321(b)(1), have been considered, whether or not they were raised by the veteran, as required under Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that no exceptional or unusual factors are in evidence, such as frequent periods of hospitalization, which would warrant an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1). Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). As the evidence of record is against the claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet.App. 49, 58 (1991). The veteran's claim for a disability evaluation in excess of 50 percent is denied. Knee Claims The veteran essentially contends that his left and right knee disabilities are more severe than indicated by his current 10 percent rating per knee. The veteran was provided a VA examination in December 2006. The veteran took Tylenol for his pain as needed. His medical history included reports of his knees giving way, and having instability, pain, stiffness, weakness, and incoordination. He also reported a decreased speed of joint motion, but no episodes of dislocation or subluxation. He had locking episodes weekly, but no inflammation of flare-ups. The motions of the joints were affected to the extent that the veteran reported being unable to stand for more than a few minutes and unable to walk more than a few yards. He used a cane, intermittently. The VA examiner found the veteran's gait to be normal. There was no abnormal weight bearing, loss of a bone or part of a bone, or inflammatory arthritis. The examiner further found the right knee to have no mass behind the knee, grinding, instability, patellar abnormality, or meniscus abnormality. The right knee did click or snap. The Left knee indicated no bumps consistent with Osgood-Schlatter's disease, mass behind the knee, grinding, instability, patellar abnormality, meniscus abnormality, or abnormal tendons or bursae. The left knee did click or snap. No other knee abnormalities were found. Indeed, contemporaneous x-ray reports of the knees revealed a normal impression. Bilateral knee flexion had active and passive ranges of motion of 0 to 140 degrees. Resisted isometric movement was normal. There was no pain on active or passive motion or repetitive use. There was no additional loss of motion on repetitive use. Bilateral knee extension was 0 to 140 degrees for both active and passive range of motion. The resisted isometric movement was normal. There was no pain on active or passive motion or repetitive use. There was no additional loss of motion on repetitive use. The examiner found no joint ankylosis. The veteran reported walking and standing limitations due to his flat feet condition and occasional knee pain when turning in bed. X- ray results found a normal examination. The veteran was retired at the time of the examination, and reported he had retired as a printer due to his age or duration of work. The veteran was diagnosed with bilateral knee strain; traumatic arthritis of the knees was a problem associated with the diagnosis. The veteran's knees prevented his ability to perform chores, sports, recreation, and traveling. The effects were severe when shopping and exercising, and moderate when bathing, dressing, toileting, and driving. It did not affect his ability to groom himself. Range of motion was from 0 to 140 degrees, which is not indicative of compensation for limitation of motion as indicated under Diagnostic Codes 5260 or 5261. Although degenerative joint disease of the knee was noted in a May 2005 VA x-ray, there was no limitation of motion to allow for a 10 percent rating, under Diagnostic Code 5003. Ratings would also not be applicable under Diagnostic Code 5257 for recurrent subluxation or lateral instability. The December 2006 VA examination found negative joint instability and subluxation of either kn ee. Ratings based on ankylosis, dislocated cartilage, or the removal of cartilage are also not applicable, as there is no clinical evidence of record to indicate that the appellant has demonstrated any such symptomatology. Diagnostic Codes 5256, 5258, and 5259. The appellant has also put forth credible complaints of pain on use of the joint. With regard to such complaints, the Court has held that VA must consider additional functional loss on use due to pain on motion or due to flare-ups of the disability. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995). Taking all of the evidence of record into consideration, the Board finds that the appellant's knee disabilities are likely manifested by some functional limitation due to pain on motion. The Board notes that the 10 percent rating already granted him for each knee contemplates complaints of pain. There is no showing of any other functional impairment which would warrant a higher rating for the complaints of pain. 38 C.F.R. §§ 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a. Additionally, there is no evidence that warrants referral of the veteran's claims for extraschedular consideration. There is no evidence of marked interference such as frequent periods of hospitalization or any other factor that would render inappropriate the application of regular rating standards with regard to the veteran's back disability. Treatment has been very limited and the veteran is not shown to have been hospitalized due to his knee disability. Accordingly, the claim will not be referred for extraschedular consideration. See 38 C.F.R. § 3.321(b)(1). As the evidence of record is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet.App. at 58. The veteran's claim for a disability rating for knee disabilities in excess of 10 percent is denied. ORDER A disability evaluation in excess of 50 percent for bilateral pes planus is denied. A disability evaluation in excess of 10 percent for a left knee disability is denied. A disability evaluation in excess of 10 percent for a right knee disability is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs