Citation Nr: 1007402	
Decision Date: 03/01/10    Archive Date: 03/11/10

DOCKET NO.  07-10 949	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in San Diego, 
California


THE ISSUE

Entitlement to a rating in excess of 30 percent for bilateral 
foot disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Muhlfeld, Associate Counsel


INTRODUCTION

The Veteran had active military service from May 1991 to 
February 1993. 

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of a March 2006 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Anchorage, Alaska.

The Veteran testified before the undersigned Veterans Law 
Judge at a hearing in San Diego, California in September 
2009.  A transcript of that hearing is of record.

During the Veteran's September 2009 Board hearing, the 
Veteran raised the issue of service connection for a 
disability of the hips secondary to service-connected 
bilateral foot disability.  Further, during her Board hearing 
the Veteran stated that her service-connected low back and 
left knee disabilities had grown worse.  As such, these 
issues are referred to the RO for appropriate action.


FINDING OF FACT

The Veteran's bilateral foot disability more nearly 
approximates pronounced symptoms.


CONCLUSION OF LAW

The criteria for a 50 percent rating for service-connected 
bilateral foot disability have been met.  38 U.S.C.A. §§ 
1155, 5107 (West 2002);  38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 
4.20, 4.71a, Diagnostic Code 5276 (2009).




REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's 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. 2009); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and her representative of any information, and any 
medical or lay evidence, that is necessary to substantiate 
the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The VCAA 
notice must inform the claimant of any information and 
evidence not of record (1) that is necessary to substantiate 
the claim; (2) that VA will attempt to obtain on behalf of 
the claimant, and (3) any evidence that the claimant is 
expected to provide.  38 C.F.R. § 3.159(b)(1).  VCAA notice 
should be provided to a claimant before the initial 
unfavorable agency of original jurisdiction (AOJ) decision on 
a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The Board notes that effective May 30, 2008, VA amended its 
regulations governing VA's duty to provide notice to a 
claimant regarding the information necessary to substantiate 
a claim.  The new version of 38 CFR 3.159(b)(1), removes the 
portion of the regulation which stated that VA would request 
that the claimant provide any evidence in her possession that 
pertains to the claim.  See 73 Fed. Reg. 23353-54 (April 30, 
2008).

The Veteran was apprised of VA's duties to both notify and 
assist in correspondence dated in December 2005, March 2006, 
and August 2008.  (Although the complete notice required by 
the VCAA was not provided until after the RO adjudicated the 
appellant's claim, "the appellant [was] provided the 
content-complying notice to which she [was] entitled."  
Pelegrini, 18 Vet. App. at 122.  Consequently, the Board does 
not find that the late notice under the VCAA requires remand 
to the RO.  Nothing about the evidence or any response to the 
RO's notification suggests that the case must be re-
adjudicated ab initio to satisfy the requirements of the 
VCAA.)

Specifically regarding VA's duty to notify, the notifications 
to the Veteran apprised her of what the evidence must show to 
establish entitlement to an increased rating, what evidence 
and/or information was already in the RO's possession, what 
additional evidence and/or information was needed from the 
Veteran, what evidence VA was responsible for getting, and 
what information VA would assist in obtaining on the 
Veteran's behalf.  The Veteran was apprised of the criteria 
for assigning disability ratings and for award of an 
effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006).

Regarding VA's duty to assist, the RO obtained the Veteran's 
service treatment records (STRs), VA and private medical 
records, and provided two examinations in furtherance of her 
claim for an increased rating for a bilateral foot 
disability.  

VA examinations with respect to the issue on appeal were 
obtained in February 2006 and August 2008.  38 C.F.R. 
§ 3.159(c)(4).  When VA undertakes to provide a VA 
examination or obtain a VA opinion, it must ensure that the 
examination or opinion is adequate.  Barr v. Nicholson, 21 
Vet. App. 303, 312 (2007).  As noted below, the Board finds 
that the VA examinations obtained in this case are more than 
adequate, as they were predicated on consideration of the 
medical records in the Veteran's claims file, considered the 
pertinent evidence of record, and provided information 
necessary to apply the relevant diagnostic codes pertaining 
to the Veteran's bilateral foot disability.  Accordingly, the 
Board finds that VA's duty to assist with respect to 
obtaining a VA examination or opinion with respect to the 
issue on appeal has been met.  38 C.F.R. § 3.159(c) (4).

II. Analysis

Disability ratings are determined by the application of a 
schedule of ratings, which is based on the average impairment 
of earning capacity.  Individual disabilities are assigned 
separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 
4.1.  Where entitlement to compensation has already been 
established and an increase in the assigned evaluation is at 
issue, it is the present level of disability that is of 
primary concern.  Francisco v. Brown, 7. Vet. App. 55, 58 
(1994).  Although the recorded history of a particular 
disability should be reviewed in order to make an accurate 
assessment under the applicable criteria, the regulations do 
not give past medical reports precedence over current 
findings.  Id.

The United States Court of Appeals for Veterans Claims 
(Court) has also found that staged ratings are appropriate 
for an increased rating claim when the factual findings show 
distinct time periods where a service-connected disability 
exhibits symptoms that would warrant different ratings.  Hart 
v. Mansfield, 21 Vet. App. 505 (2008).  Here, the Board has 
found no medical evidence of record that would warrant a 
staged rating for this increased rating claim.

The Veteran is currently diagnosed with pes planus, Morton's 
neuroma, and plantar fasciitis, status-post bunionectomies.

The Veteran's bilateral foot disability has been rated under 
38 C.F.R. § 4.71a, Diagnostic Code 5276 for flatfoot (pes 
planus).  Pursuant to diagnostic code 5276, a 10 percent 
rating is warranted for moderate pes planus, weight-bearing 
line over or medial to the great toe, inward bowing of the 
tendo-Achilles, pain on manipulation and use of the feet.  A 
30 percent evaluation is warranted for severe bilateral pes 
planus, objective evidence of marked deformity (pronation, 
abduction, etc.), pain on manipulation and use accentuated, 
an indication of swelling on use, characteristic callosities.  
A 50 percent evaluation is warranted for pronounced bilateral 
pes planus, marked pronation, extreme tenderness of plantar 
surfaces of the feet, marked inward displacement and severe 
spasm of the tendo-Achilles on manipulation, not improved by 
orthopedic shoes or appliances.  The Board notes that a 50 
percent rating is the highest rating available under 
diagnostic code 5276.  38 C.F.R. § 4.71a, Diagnostic Code 
5276.

In evaluating an acquired flat foot disability, it is to be 
remembered that depression of the longitudinal arch, or the 
degree of depression, is not the essential feature.  The 
attention should be given to anatomical changes, as compared 
to normal, in the relationship of the foot and leg, 
particularly to the inward rotation of the superior portion 
of the os calcis, medial deviation of the insertion of the 
Achilles tendon, and the medial tilting of the upper border 
of the astragalus.  This is an unfavorable mechanical 
relationship of the parts.  A plumb line dropped from the 
middle of the patella falls inside of the normal point.  The 
forepart of the foot is abducted, and the foot everted.  The 
plantar surface of the foot is painful and shows demonstrable 
tenderness, and manipulation of the foot produces spasm of 
the Achilles tendon, peroneal spasm due to adhesion about the 
peroneal sheaths, and other evidence of pain and limited 
motion.  The symptoms should be apparent without regard to 
exercise.  In severe cases there is gaping of bones on the 
inner border of the foot, and rigid valgus position with loss 
of the power of inversion and adduction. Exercise with 
undeveloped or unbalanced musculature, producing chronic 
irritation, can be an aggravating factor.  See 38 C.F.R. § 
4.57 (2009).

Relevant evidence of record consists of the Veteran's VA 
examinations, dated in February 2006 and August 2008, in 
addition to an April 2007 private examination, physical 
therapy treatment records, and treatment records from the 
Anchorage VA medical center (VAMC).

The February 2006 VA examiner, D.S., M.D., diagnosed the 
Veteran with moderate to severe pes planus with bilateral 
plantar fasciitis, noting that the left foot was much more 
severe than the right.  Dr. S. noted that from the Veteran's 
history and examination, it appeared that there had been 
significant functional decline.  He noted evidence of marked 
tenderness as well as the Veteran reporting significant loss 
of function with extended walking or standing.  Dr. S. also 
diagnosed the Veteran with bilateral Morton's neuromas, of 
mild consequence only.  Dr. S. noted that the Veteran had 
mild to moderate tenderness on examination, but this was 
relatively insignificant compared with the degree of pain 
from the plantar fasciitis.  

On examination of the left foot, there was significant 
tenderness to palpation over the arch of the left foot as 
well as tenderness over the distal aspect of the second 
metatarsal.  A weightbearing examination showed marked 
collapse of the arch of the foot as well as a 10 degree 
angulation of the Achilles tendon with weightbearing.  There 
was moderate pain on manipulation of the Achilles tendon, and 
the examiner noted forefoot or mid-foot malalignment.  
Examination of the right foot showed mild to moderate 
tenderness over the plantar surface of the foot, over the 
arch.  On weightbearing exam, there was a dramatic collapse 
of the arch as well as an approximate 5 to 10 degree 
angulation of the Achilles tendon.  Dr. S. noted that the 
Achilles tendon was slightly tender on manipulation, and 
noted that there did not appear to be any forefoot or mid-
foot malalignment.  Dr. S. noted that the Veteran's gait was 
essentially normal, although she did walk with a very slight 
limp, which appeared to be from the pain in the left foot.  
The examiner noted that the Veteran had an MRI in December 
2005 which revealed mild pes planus.  At this examination, 
the Veteran reported that since 1993, she had multiple 
orthotics made for her feet, which have provided only minimal 
relief.  She noted that she had undergone steroid injections 
and had been provided with night splints, but had not had to 
use crutches, a cane or a walker.  The Veteran stated that 
the pain was so severe at times that she was unable to walk, 
and was worse in the morning.  She noted that her bilateral 
foot disability had a marked effect on her employment because 
her job involved walking and carrying computers.

The Veteran was afforded another VA examination in August 
2008.  On examination, the examiner, L.K., M.D. diagnosed the 
Veteran with bilateral pes planus, severe plantar fasciitis 
of the left foot, and mild plantar fasciitis of the right 
foot.  On examination of the left foot, Dr. K. noted no 
evidence of painful motion, weakness or instability, but 
noted severe pain on palpation medially over the navicular 
bone.  The examiner found no functional limitation on 
standing and walking within the examination room, but found 
evidence of abnormal weight bearing, noting that a large 
callus was present over the head of the left second 
metatarsal bone.  The examiner noted that the Achilles tendon 
was slightly displaced at the insertion on the calcaneus, and 
stated that the plantar surface of the mid-foot was 
exquisitely tender, though no tear or other deformity of the 
plantar fascia could be palpated.  Examination of the right 
foot revealed mild tenderness on palpation over the medial 
aspect of the mid-foot at the navicular bone, but found no 
functional limitation on standing or walking within the 
examination room.  Dr. K. noted that there was weak evidence 
of abnormal weight bearing, noting evidence of mild callus 
formation over the heads of the first and second metatarsal 
bones of the plantar surfaces and heavy callus on the plantar 
surface of the first toe interphalangeal joint.  The examiner 
noted that the Achilles tendon alignment was slightly 
displaced at the insertion into the calcaneus.  The examiner 
noted mild tenderness on palpation over the plantar surface 
of the mid-foot in contrast to that of the opposite foot 
which was very tender.

In addition to these VA examinations, at an April 2007 
private podiatry examination, the examiner noted severe pain 
and tenderness with palpation over the medial aspect of the 
left foot involving the posterior tibial tendon and 
navicular, and diagnosed the Veteran with a fracture of the 
navicular scaphoid, and swelling in her left foot.  An x-ray 
taken at the time of the examination revealed mild 
subcutaneous edema in the heel pad suggestive of mild plantar 
fasciitis, however, no evidence of plantar fascia tears were 
identified.

Other private podiatry records include therapy notes from the 
Valdez medical center, where a February 2005 entry noted that 
the Veteran had tried arch supports which did not help, and 
the Veteran presented complaining of excessive pronation in 
weight bearing in March 2005, and a February 2005 entry noted 
that the Veteran was recently provided with arch supports 
which unfortunately caused increased pain.

Outpatient treatment records from the Anchorage VAMC, contain 
Podiatry consults which show treatment for plantar fasciitis, 
and pes planus.  November 2004 and November 2005 entries both 
noted severe pes planus with forefoot varus left greater than 
the right, with pain upon palpation.  A November 2004 entry 
noted that due to the Veteran's severe pronation and flat 
feet, the biomechanics of her feet may be exacerbating her 
pain in her knee and back.

Here, the evidence of record shows that the Veteran's 
disability picture more nearly approximates a 50 percent 
rating.  38 C.F.R. § 4.7.  She has extreme tenderness of the 
plantar surface of the left foot, (see August 2008 VA 
examination, describing the plantar surface as exquisitely 
tender), and although the tenderness has not been described 
as being so exquisite on the right side, examiners have noted 
severe pronation on both sides as well as displacement of the 
tendo achillis on both sides, which is suggestive of 
pronounced vice severe symptoms.  Moreover, the Veteran 
testified about having muscle spasms that are particularly 
bothersome at night.  While the Veteran's right foot does not 
appear to be as symptomatic as the left, either by the 
Veteran's own account or upon examination, she does 
experience problems with both feet that are akin to the 
symptoms characteristic of a pronounced disability, such as 
having difficulty finding any orthotics that are helpful, as 
well as the pronation, displacement of the tendo achillis and 
the spasms.  Consequently, with resolution of reasonable 
doubt in the Veteran's favor, and with application of 
38 C.F.R. § 4.7, the Board finds that a 50 percent rating is 
warranted throughout the claim period.  

The above determination is based on consideration of the 
applicable provisions of VA's rating schedule.  The Board 
also finds that at no time have the Veteran's foot problems 
been shown to be so exceptional or unusual as to warrant the 
assignment of any higher rating on an extra-schedular basis.  
See 38 C.F.R. § 3.321(b)(1).  Here, there is an absence of 
evidence of marked interference with employment (i.e., beyond 
that contemplated in the assigned evaluation), frequent 
periods of hospitalization, or evidence that the Veteran's 
service-connected bilateral foot disability otherwise has 
rendered impractical the application of the regular schedular 
standards.  Thus, the criteria for invoking the procedures 
set forth in 38 C.F.R. § 3.321(b)(1) are not met.  See 
Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. 
Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. 
App. 218, 227 (1995).

Furthermore, it bears emphasis that the schedule is intended 
to compensate for average impairments in earning capacity 
resulting from service-connected disability in civil 
occupations.  38 U.S.C.A. § 1155.  Generally, the degrees of 
disability specified in the rating schedule 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 (2009).  
Based on the record before it, the Board does not find that 
the medical evidence demonstrates any unusual disability with 
respect to the claim that is not contemplated by the rating 
schedule.  As a result, the Board concludes that a remand to 
the RO for referral of this rating issue to the VA Central 
Office for consideration of extra-schedular evaluation is not 
warranted.


ORDER

Entitlement to a rating of 50 percent for bilateral foot 
disability is granted, subject to the laws and regulations 
governing the award of monetary benefits.



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs