Citation Nr: 1005232 Decision Date: 02/04/10 Archive Date: 02/25/10 DOCKET NO. 09-06 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for bilateral knee disability, including as secondary to service-connected bilateral pes cavus. 2. Entitlement to service connection for bilateral hip disability, including as secondary to service-connected bilateral pes cavus. 3. Whether new and material evidence has been received to reopen a claim for service connection for post-polio syndrome (previously characterized as poliomyelitis). 4. Entitlement to an increased rating for bilateral pes cavus, currently rated 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. J. Janec, Counsel INTRODUCTION The Veteran had active military service from November 1970 to January 1973. These matters come before the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Fargo, North Dakota, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied an increased rating for bilateral pes cavus; and a January 2009 rating decision that denied service connection for bilateral knee and hip disabilities, including as secondary to service-connected bilateral pes cavus, and found that new and material evidence had not been received to reopen a claim for service connection for post-polio syndrome. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2009. At the hearing, he submitted additional evidence with a waiver of RO review in accordance with 38 C.F.R. § 20.1304 (2009). The Board also observes that the Veteran submitted additional evidence in September 2009 without a waiver of RO review. Moreover, the November 2009 waiver was limited to the evidence received on the date of the hearing. However, a review of the evidence shows that it is not germane to the issue of entitlement to an increased rating for the service- connected bilateral pes cavus. Hence, the Board finds that a waiver of RO consideration with regard to that issue is not necessary, and the Board will address the merits of that claim herein. See 38 C.F.R. § 20.1304(c) (evidence is not pertinent if it does not relate to or have a bearing on the appellate issue or issues). The issues of entitlement to service connection for bilateral knee and hip disabilities, including as secondary to bilateral pes cavus, and whether new and material evidence has been received to reopen a claim for service connection for post-polio syndrome, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected bilateral pes cavus is not shown to be productive of marked contraction of plantar fascia with bilateral dropped forefoot or marked varus deformity. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for the service-connected bilateral pes cavus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5278 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit other evidence that may be relevant to the claim. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In an August 2007 letter, prior to the rating decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate the claim for an increased rating, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of, or submit any further medical evidence relevant to, the claims. He was also advised of how disability ratings and effective dates are assigned. The Board also observes the Court's holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which focuses on VCAA notice requirements in an increased rating case. However, this case was recently overturned in part by the Federal Circuit. See Vazquez-Flores v. Shinseki, No. 08-7150 (Fed. Cir. Sep. 4, 2009). Hence, it need not be further discussed in this decision, and the Board finds that the duty to notify provisions have been satisfactorily met. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's service treatment records, post service VA and private treatment records, the relevant VA examination reports, the Veteran's statements, and a statement from his father. Moreover, the VA examination reports are sufficient for rating purposes as they adequately address the relevant factors contained in the rating criteria. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (noting that a medical opinion must describe the disability in sufficient detail so the Board can make a fully informed evaluation of the disability). The Veteran also provided personal hearing testimony before the undersigned in November 2009. Again, as noted in the Introduction above, the Veteran submitted additional evidence at his November 2009 hearing with a waiver of RO review in accordance with 38 C.F.R. § 20.1304. The additional evidence he submitted in September 2009 is not relevant to the issue of entitlement to an increased rating for bilateral pes cavus; hence, the Board will proceed with a decision on that matter. As discussed, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. Thus, the record demonstrates that the Veteran had knowledge of what was needed to substantiate the claim, which cured any defect in the notice provided. Any defect in the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. As such, there is no indication that there is any prejudice to the Veteran in considering the matters on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2009). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2009). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2009). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). Degenerative or traumatic arthritis, established by X-ray findings, is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (degenerative arthritis) and Diagnostic Code 5010 (traumatic arthritis). The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 must be considered in assigning an evaluation for degenerative or traumatic arthritis under Diagnostic Code 5003 or 5010. Rating personnel must consider functional loss and clearly explain the impact of pain on the disability. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The provisions of 38 C.F.R. § 4.40 concern lack of normal endurance, functional loss due to pain, and pain on movement and during flare-ups; the provisions of 38 C.F.R. § 4.45 concern weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity. 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; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Veteran's service-connected bilateral pes cavus has been assigned a 30 percent disability evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5278. Under Diagnostic Code 5278, a 30 percent evaluation is assigned for bilateral claw foot (pes cavus) manifested by all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads. A 30 percent rating is also assigned for unilateral pes cavus manifested by marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity. A 50 percent evaluation is assigned for a bilateral pes cavus manifested by marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity. Given its review of the record, the Board finds that an evaluation in excess of 30 percent for the Veteran's service- connected bilateral pes cavus is not warranted at any time during the period of this appeal. Overall, the symptoms described during the VA examinations are adequately contemplated by the 30 percent evaluation already assigned. For example, at the September 2007 VA examination, claw foot was found bilaterally and involved all of his toes on both feet. He also had a mild high arc, bilaterally as well as decreased strength against resisted plantar flexion and dorsiflexion and difficulty standing on his heels or toes. However, there was no evidence of abnormal weight bearing, foot drop, or marked varus deformity. Similar findings were made upon VA examination in December 2008. Additionally, the examiner noted at that time that the Veteran had extensive callous formation on the metatarsal heads, but they were not reported to be very painful. In fact, clinical evaluation showed no pain with motion, edema, instability, or tenderness of either foot. An April 2009 VA podiatry consult note did report that there was evidence of left drop foot. However, since the foot drop is only unilateral, the Veteran would still only be entitled to a 30 percent rating under Diagnostic Code 5278. The Board has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45 as well as DeLuca v. Brown, 8 Vet. App. 202 (1995) (holding that functional loss, supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion, is recognized as resulting in disability). However, the relevant factors have already been contemplated in the currently assigned disability evaluation for the Veteran's bilateral foot disability, and the medical reports do not show that he experiences additional loss of range of motion or functional impairment with repetitive motion or use. At the September 2007 VA examination, he specifically denied flare-ups and reported mild discomfort in the feet that was resolved with resting. He was also able to drive without difficulty and he was able to perform his activities of daily living. Consequently, for these reasons, the Board concludes that the evidence does not support the assignment of an evaluation in excess of 30 percent for the service-connected bilateral pes cavus at any time during the appeal period. The Board has based its decision in this case upon the applicable provisions of the VA's Schedule for Rating Disabilities. The Veteran has submitted no evidence showing that his service-connected bilateral pes cavus markedly interfered with his employment status beyond that interference contemplated by the assigned evaluation (and in fact, he currently remains employed full-time as a priest), and there is also no indication that this disability has necessitated frequent periods of hospitalization during the pendency of this appeal. At the September 2007 VA examination, he reported that he had had not missed any work as a result of his disability, he never had any surgery on his feet, and he had never been hospitalized for the condition. As such, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an evaluation in excess of 30 percent for bilateral pes cavus is denied. REMAND As noted in the Introduction above, the Veteran submitted additional evidence at his November 2009 hearing with a waiver of RO review in accordance with 38 C.F.R. § 20.1304. However, in September 2009, he also submitted additional evidence which consisted of a personal statement and medical treatise evidence from the Mayo Clinic. He did not include a waiver with this evidence and the RO did not consider the evidence and issue a supplemental statement of the case as required by 38 C.F.R. § 20.1304. Moreover, the Board finds that this evidence is directly relevant to the issues of entitlement to service connection for bilateral knee and hip disabilities, including as secondary to service-connected bilateral pes cavus, and whether new and material evidence has been received to reopen a claim for service connection post-polio syndrome. Accordingly, the Board finds that a remand is necessary. Accordingly, the case is REMANDED for the following action: The RO should readjudicate the issues of entitlement to service connection for bilateral knee and hip disabilities, including as secondary to service- connected bilateral pes cavus, and whether new and material evidence has been received to reopen a claim for service connection post-polio syndrome, based on all the evidence of record, including the additional information submitted by the Veteran in September 2009. If any benefit sought on appeal remains denied, then the RO should issue another Supplemental Statement of the Case and afford the Veteran and his representative with an appropriate opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs