Citation Nr: 1004563 Decision Date: 01/29/10 Archive Date: 02/16/10 DOCKET NO. 07-37 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for bilateral pes planus and plantar fasciitis. (The issue of entitlement to service connection for a skin disorder was the subject of a separate decision of the Board dated January 8, 2010.] REPRESENTATION Veteran represented by: John S. Berry, Esq. ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska which granted service connection for bilateral pes planus and bilateral plantar fasciitis. A 10 percent disability rating was assigned, effective from July 10, 2003. This matter was previously before the Board in November 2008. In a November 2008 decision, the Board denied the Veteran's claim for an initial rating in excess of 10 percent for the disabilities at issue. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in August 2009, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Remand. In the Joint Motion, the parties indicated that a remand was necessary "because the Board did not properly apply the provisions of 38 C.F.R. § 4.71a Diagnostic Code 5276." See the August 2009 Joint Motion at page 1. In an August 2009 order, the Court vacated the Board's November 2008 decision and remanded the matter for readjudication in light of the Joint Motion. FINDING OF FACT The Veteran's bilateral pes planus and plantar fasciitis are manifested by complaints of pain, discomfort, swelling on use, and cramping; examination of the Veteran's feet revealed pain on manipulation and use accentuated, inward bowing Achilles tendon alignment, pronation, and a weight bearing line medial to the great toe. CONCLUSION OF LAW The criteria for a 30 percent initial rating for service- connected bilateral pes planus and plantar fasciitis have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5276 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. Because the August 2007 rating decision on appeal granted the veteran's claim for service connection for bilateral pes planus and plantar fasciitis, such claim is now substantiated. His filing of a notice of disagreement as to the August 2007 initial rating assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3) (2009). Rather, the veteran's appeal as to the initial rating assignment here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here, as will be discussed below. The statement of the case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes (DC) for rating the disability at issue (38 C.F.R. § 4.71a, DC 5276 and 5284), and included a description of the rating formulas for all possible schedular ratings under these diagnostic codes. The appellant was thus informed of what was needed not only to achieve the next- higher schedular rating, but also to obtain all schedular ratings above that assigned. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected disability at issue. Nevertheless, the Board observes that the Veteran was informed of the evidentiary requirements for an increased rating in a letter from the RO dated October 10, 2007, including a request for evidence that the service-connected disability had gotten worse. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (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. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran was provided specific notice consistent with the Dingess decision in the above-referenced October 2007 letter which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The Veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on- going treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the October 2007 letter instructed the Veteran that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The Veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the Veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. The Veteran and his representative have not raised any VCAA notice concerns. It is abundantly clear that the Veteran through his representative is fully aware of what is required under the VCAA. See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the Veteran]; see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) [VA has no further duty to notify a Veteran of the evidence needed to substantiate his claim, or to assist him in obtaining evidence, in that no reasonable possibility exists that any further assistance would aid him in substantiating his claim]. In short, the record indicates that the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, the VA has obtained the Veteran's service treatment records along with post-service VA treatment and assessment records. In addition, the claims file contains reports of multiple VA medical examinations. The claims folder also contains the Veteran's statements in support of his claim. The Board has carefully reviewed his statements and concludes that there has been no identification of further available evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. As the Board will discuss in detail in its analysis below, the Veteran was provided with VA examinations in July 2007, January 2004, and September 2003. The reports of these examinations reflect that the examiners recorded the Veteran's current complaints, conducted appropriate physical examinations and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the record does not reflect that the January 2004 examiner reviewed the Veteran's claims folder, the Veteran is not prejudiced thereby as the examiner considered medical history as reported by the Veteran which is consistent with that contained in the Veteran's claims folder. The Board notes that the Veteran's representative, in a November 2007 statement, argued that the Veteran was not afforded an adequate VA examination. Specifically, the Veteran's representative stated that "the medical examination is inadequate because it did not appropriately consider [the Veteran's] lay statements" concerning his symptoms, and "it did not actually test for the criteria employed to deny a higher disability evaluation." The Board finds no indication that any of the VA examinations failed to consider the Veteran's lay statements. In fact, each VA examination report lists the Veteran's complaints and details the history of the Veteran's bilateral foot disability as explained to the examiner by the Veteran. Further, there is no evidence that any of the VA examiners failed to examine the Veteran for criteria that would merit a higher disability evaluation. The Board therefore concludes that the examinations are adequate for rating purposes. See 38 C.F.R. § 4.2 (2009). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2009). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has declined to exercise his option of a personal hearing. Accordingly, the Board will proceed to a decision. Relevant law and regulations Disability ratings - in general Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2009). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Specific rating criteria Bilateral pes planus will be rated as noncompensable when it is mild, with symptoms relieved by built-up shoe or arch support. A moderate disability, with weight-bearing over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, will be rated as 10 percent disabling, whether bilateral or unilateral. A severe disability, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, will be rated as 30 percent disabling where bilateral. A pronounced disability (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) will be rated as 50 percent disabling where bilateral. See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2009). The words "moderate," "severe," "pronounced" and "marked" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6 (2009). The Board observes in passing that 'moderate' is generally defined as "tending toward the mean or average amount or dimension." See Merriam-Webster's Collegiate Dictionary, 798 (11th 2003). "Severe" is generally defined as "of a great degree: serious." Id. at 1140. Rating musculoskeletal disabilities The 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. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2009). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2009). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45 (2009). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2009). The Court remand The August 2009 Joint Motion, as adopted by the Court's August 19, 2009 Order, stated that "the Board did not properly apply the provisions of 38 C.F.R. § 4.71a Diagnostic Code 5276." See the August 2009 Joint Motion, page 1. Specifically, the parties observed that "[e]ach rating within [Diagnostic Code] 5276 contains a descriptive label followed by a list of symptoms that would entitle a claimant to that rating." Id. page 4. The Joint Motion asserted that, in the November 2008 decision, the Board applied the descriptive label as a modifier to the listed symptoms. As such, the parties found that the Board's rationale for denying the Veteran's claim was not adequate and prevented effective judicial review. The Board wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C.A. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis of the Veteran's claim of entitlement to service connection has been undertaken with that obligation in mind. Analysis Assignment of diagnostic code The Veteran's bilateral flatfoot has been rated by the RO under 38 C.F.R. § 4.71a, Diagnostic Code 5276 [flat feet]. The Board can identify no more appropriate diagnostic code, and the Veteran has pointed to none. Schedular rating As noted in the law and regulations section above, to warrant a 30 percent disability, there must be objective evidence showing a bilateral flat foot disability characterized by marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, [and] characteristic callosities. The Board initially observes that the Joint Motion did not indicate any disagreement with the Board's previous recitation of the facts underlying this claim. During the July 2007 VA examination, the Veteran indicated that his feet become symptomatic with prolonged weight- bearing activities. He described being able to walk a quarter of a mile, and being able to tolerate standing for 10 to 15 minutes at a time. The VA examiner noted that the Veteran experiences plantar fasciitis at times in the mornings, including "pain and stiffness into the plantar aspects of the feet bilaterally." In terms of treatment, the Veteran stated that he uses molded orthotics in each shoe, and that he has undergone a number of foot injections. The VA examiner noted that the frequency of the Veteran's foot joint disease flare-ups was weekly or more often, and that the usual duration of such flare-ups was less than one day. Upon physical examination of the Veteran's left foot, the VA examiner noted objective evidence of tenderness at the plantar aspect of the foot and into the arch and heel. There was no evidence of abnormal weight bearing, no skin or vascular foot abnormality, and no evidence of malunion or nonunion of the tarsal or metatarsal bones. The Veteran had inward bowing Achilles tendon alignment while weight- bearing, but this was found to be correctible with manipulation. No forefoot or midfoot malalignment was found, however a moderate amount of pronation was noted. The VA examiner noted that no arch was present in the Veteran's foot, and that the location of his weight bearing line was medial to the great toe. The physical findings with regard to the Veteran's right foot were noted to be the same as those of the left foot. X-rays of both feet taken at the July 2007 VA examination showed small bilateral calcaneal spurs but otherwise normal feet. The diagnosis at that time was bilateral pes planus and bilateral plantar fasciitis. Prior to the July 2007 VA examination, the Veteran had been seen for a VA examination in January 2004. The January 2004 VA examiner also noted that the Veteran wears orthotic inserts and has had foot injections. The Veteran stated that his feet hurt in the morning and during the day if he performs extra walking. Upon examination, the Veteran had moderate flat feet with mild discomfort on palpation of the heels. The diagnosis at that time was also bilateral pes planus and bilateral plantar fasciitis. At the September 2003 VA examination, the Veteran stated that he had gone to a podiatrist and had arches made for his feet. The Veteran noted that he was able to walk up to one mile, but that his feet cramp up when walking at any distance. An X-ray was taken of the left foot prior to this examination; it showed a tiny bone spur but otherwise normal left foot. The VA examiner noted "considerable pes planus," but no other gross abnormalities, and stated that the Veteran can move his forefoot well. There was mild to moderate pain on palpation of the plantar aspect of the calcaneus on both of the Veteran's feet, and the diagnosis was bilateral pes planus and bilateral plantar fasciitis. In addition to VA compensation and pension examinations, the Board notes that the Veteran sought treatment for his feet at the Grand Island VA Medical Center during the rating period on appeal. Preliminarily, in June 2003, the Veteran was diagnosed with "foot pain." It was noted at that time that the Veteran's left foot had a calcaneus bone spur and the Veteran was referred to podiatry. There is an August 2003 VA record that shows the Veteran receiving a left heel steroid injection, given on account of left foot pain. Subsequently, there is a December 2003 VA record diagnosing plantar fasciitis and noting tenderness in the distal part of the left calcaneum at the heel. Finally, there is an April 2004 VA record showing an assessment of "pain both feet controlled with lodine." Considering the forgoing, the Board finds that the Veteran's disability picture is most consistent with a 30 percent disability rating. Specifically, the medical evidence indicates that marked deformity (pronation) was noted during the July 2007 VA examination. With respect to pain on manipulation and use accentuated, the September 2007 VA examiner noted that the Veteran displayed tenderness in the plantar aspect into the arch and heel of both feet. Upon examination in September 2003, the Veteran had "mild to moderate pain on palpation of the plantar aspect of the calcaneus" of both feet. He has received steroid injections to help with the discomfort. See an August 2003 VA outpatient treatment record. During the September 2007 VA examination, the Veteran described having to stretch his feet for nearly one to two hours before he is able to ambulate freely and without discomfort. The Veteran also stated that he can tolerate standing for 10 to 15 minutes and walking up to a quarter mile. Moreover, the VA examiner stated that the Veteran will experience mild problems performing some daily activities such as chores, shopping, exercise, recreation and moderate problems while participating in sports. Accordingly, the Board finds that pain on manipulation and use accentuated has been demonstrated. With respect to swelling on use, during the July 2007 VA examination, the Veteran stated that his feet will swell after standing and walking. While the Board acknowledges that swelling on use has not been clinically demonstrated, the Veteran is competent to testify as to the swelling of his feet. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). With respect to characteristic callosities, the July 2007 VA examiner stated that there were no skin abnormalities for either foot. The evidence of record does not indicate that the Veteran has characteristic callosities of either foot and the Veteran has not indicated otherwise. Based on the above, the Board finds that the Veteran's bilateral pes planus and plantar fasciitis more closely approximate the criteria for a 30 percent disability rating. See 38 C.F.R. § 4.7 (2009). In order to qualify for the next higher 50 percent disability rating, there must be a showing of a pronounced disability (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). In this case, "marked pronation" of the feet has never been demonstrated in the record. While tenderness of the plantar aspect of the Veteran's feet has been identified, extreme tenderness has not been clinically identified. Furthermore, the Veteran does not appear to indorse such extreme pathology as he described being able to walk a quarter of a mile and stand for 10 to 15 minutes during the July 2009 VA examination. The evidence of record also does not identify severe spasm of the tendo Achillis on manipulation and the Veteran does not contend otherwise. As for orthopedic devices, a 50 percent rating requires that assistive devices be unsuccessful in the relief of symptoms. During the September 2003 VA examination, the Veteran stated that he receives some relief from his orthopedic arch supports. The July 2007 VA examiner stated that the Veteran's response to current treatments was "fair." Accordingly, the evidence does not indicate that assistive devices have been unsuccessful in the relief of the Veteran's symptoms. A 30 percent rating is the maximum schedular rating assignable for severe foot injuries, under 38 C.F.R. § 4.71a, Diagnostic Code 5284, except that with actual loss of use of the foot, a 40 percent rating is assigned. Based on the clinical evidence as outlined above, there is no demonstration of actual loss of use of either foot. Therefore the criteria for a 30 percent initial disability rating, and no more, have been met. DeLuca consideration The 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. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has also held that where a diagnostic code is not predicated on a limited range of motion alone, such as Diagnostic Code 5257, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). However, the Board notes in passing that there is no evidence that the Veteran experiences any functional loss due to weakness, fatigability, incoordination or pain on movement. The July 2009 VA examiner specifically stated that there was no evidence of "pain, weakness, excess fatigability, incoordination, lack of endurance, or loss in range-of-motion with repetitive use." Fenderson considerations In Fenderson v. West, 12 Vet. App. 119 (1999), the Court discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. In this case, the medical evidence of record appears to support the proposition that the Veteran's service-connected bilateral pes planus and plantar fasciitis have not changed appreciably over the period on appeal. The Board accordingly finds that the increased 30 percent rating it has assigned should be made effective from the effective date of service connection, July 10, 2003. There have been no medical findings and no other evidence which would allow for the assignment of a disability rating in excess of the 30 percent that the Board is assigning. Extraschedular considerations Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. The RO included 38 C.F.R. § 3.321(b)(1) in the October 2007 Statement of the Case (SOC) and appears to have considered the regulation in the Veteran's case. Accordingly, the Board will address the possibility of the assignment of an extraschedular rating for the increased disability rating at issue. According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2009). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App, 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service- connected bilateral pes planus and plantar fasciitis. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's disability is specifically contemplated under the appropriate ratings criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. Nevertheless, the Board will briefly note that the evidence in this case does not demonstrate any of the factors provided in the "governing norms" such as frequent hospitalization or marked interference with employment. See 38 C.F.R. § 3.321(b)(1). In this case, there is no indication that the Veteran has required frequent hospitalizations for his bilateral foot disability, it does not appear that the Veteran has been hospitalized at all for this disability. With respect to employment, the evidence of record indicates that the Veteran recently retired. Specifically, in a December 2009 statement, the Veteran indicated that due to cutbacks made by his employer, his job description was altered and now required him to spend significant amounts of time on his feet. He further stated that due to his bilateral foot condition he would have been unable to perform his duties and accepted a buy-out option that required him to retire. While the Board notes that the Veteran's bilateral foot disability contributed to his decision to retire, there is no indication that the Veteran's disability caused him any unusual employment impairment. Specifically, the Board notes that the fact that the Veteran is currently unemployed is not determinative. The ultimate question is whether the Veteran, because of his service-connected disability, is incapable of performing the physical and mental acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case there is no medical evidence that the Veteran's bilateral foot disability would have marked interference with employment. See Van Hoose, supra [noting that the disability rating itself is recognition that industrial capabilities are impaired]. In addition, there is no evidence in the medical records of an exceptional or unusual clinical picture, or of any other reason why an extraschedular rating should be assigned. The Board therefore has determined that referral of the case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Conclusion In summary, for reasons and bases expressed above, the Board concludes that a 30 percent disability rating is warranted for the Veteran's service-connected bilateral pes planus and plantar fasciitis. To that extent, the appeal is allowed. ORDER An initial disability evaluation of 30 percent is granted for bilateral pes planus and plantar fasciitis, subject to governing regulations concerning the payment of monetary benefits. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs