Citation Nr: 1008945 Decision Date: 03/09/10 Archive Date: 03/17/10 DOCKET NO. 07-25 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a compensable rating for pes planus. 2. Entitlement to a rating in excess of 10 percent for lumbar strain with degenerative changes prior to October 2009. 3. Entitlement to a rating in excess of 20 percent for lumbar strain with degenerative changes since October 2009. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from May to July 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, and a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction is currently with the RO in Jackson, Mississippi. A hearing was held before the undersigned Veterans Law Judge in April 2009 and a transcript of this hearing is of record. In July 2009, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain additional medical records and afford the Veteran new examinations. The action specified in the July 2009 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Prior to October 2009, moderate flatfoot with the weight- bearing line over or medial to the great toe, inward bowing of the tendo Achilles, and pain on manipulation and use of the feet was not shown. 2. Since October 2009, flatfoot with inward bowing of the tendo Achillis and pain on use of the feet has been shown, but severe bilateral flatfoot, marked deformity, pain on manipulation and use, indication of swelling on use, and characteristic callosities have not been shown. 3. Prior to October 2009, forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; combined range of motion of the thoracolumbar spine not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months were not shown. 4. Since October 2009, forward flexion of the thoracolumbar spine of 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months have not been shown. 5. The Veteran has radiculopathy of the left lower extremity, which is manifested by mild incomplete paralysis which is wholly sensory. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for pes planus prior to October 2009 have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5276 (2009). 2. The criteria for a 10 percent rating, but no more, for pes planus from October 2009 have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.71a, DC 5276 (2009). 3. The criteria for a rating in excess of 10 percent for lumbar strain with degenerative changes prior to October 2009 have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, DCs 5237-5243 (2009). 4. The criteria for a rating in excess of 20 percent for lumbar strain with degenerative changes since October 2009 have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, DCs 5237-5243 (2009). 5. The criteria for a separate 10 percent rating for radiculopathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, DCs 8520, 8720 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). If two evaluations are potentially applicable, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether he is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also 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. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. Pes Planus In a December 1997 rating decision, the Veteran was granted entitlement to service connection for bilateral pes planus, effective August 1997, and assigned an initial non- compensable (0 percent) rating. In May 2006, he filed a claim for an increase, arguing that his condition had worsened. In order to warrant a higher rating under DC 5276, the evidence must show: * moderate flatfoot with the weight-bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet, whether bilateral or unilateral (10 percent); * severe bilateral flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities (30 percent); or * pronounced bilateral flatfoot, with 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 (50 percent). VA treatment records from January 2006 through October 2009 document repeated complaints of bilateral foot pain that worsened with walking and weight bearing. VA provided the Veteran with custom made orthotics. The Veteran also submitted private medical records documenting treatment for a number of complaints related to the feet and lower extremities, including flat feet, heel spur syndrome, Achilles tendonitis, plantar fasciitis, hammertoes, and adventitious bursitis. Symptoms noted included pain, some difficulty ambulating, decreased inversion bilaterally, and swelling. Unfortunately, it is unclear from the evidence which disorders were causing which symptoms. The Veteran was also afforded a number of VA examinations, beginning in September 2006. At the September 2006 examination, he complained of constant bilateral foot pain which was only partially relieved by pain medication. On examination, he had pes planus bilaterally which was described as "100% full." However, his feet were otherwise normal. The ankle and distal feet were nontender on manipulation, although there was some tenderness to palpation of the plantar surfaces bilaterally, and the Veteran showed no evidence of abnormal weightbearing. He reported that he did not use any canes, crutches, corrective shoes, or other assistive devices. He had no hammertoes, clawfoot, edema, abnormal callosities, or abnormal skin or vascular changes. There was no evidence of painful motion, and his gait was normal. A neurologic examination was normal, as was the alignment of the Achilles tendons. The Veteran was diagnosed with pes planus with plantar fasciitis, which the examiner concluded would cause only very mild limitation of prolonged standing and walking. While he reported subjective complaints of pain, weight-bearing and alignment of the Achilles tendon were normal, and the ankle and feet were nontender on manipulations. As such, this evidence does not support a compensable rating. The Veteran was afforded a second VA examination in October 2007. At that time, he denied unsteadiness or a history of falls, as well as the use of braces or other aides to ambulation. He reported that he was able to do his job despite his foot problems and able to perform daily activities. His gait was normal, and he did not have objective evidence of painful motion, edema, instability, weakness, tenderness, callosities, breakdown, unusual shoe wear, skin or vascular changes, or change to the weight bearing alignment of the Achilles tendon. X-rays showed evidence of bilateral pes planus, and the Veteran was diagnosed with mild pes planus. The examiner noted that the Veteran's subjective complaints were not supported by objective physical findings and he expressed the opinion that the Veteran was exaggerating his symptomatology and pain behavior. Nonetheless, because weight-bearing alignment and the Achilles tendon were normal, the evidence does not support a compensable rating. The Veteran was afforded another VA examination in October 2009. At that time, he complained of constant bilateral foot pain that was initiated by standing or walking, which prevented him from standing more than ten or fifteen minutes at a time. He reported using braces on a daily basis, although he was not wearing them at the examination. He estimated that he had missed over thirty days of work over the last year; however, he was independent with his activities of daily living and did not use any assistive devices. On examination, the Veteran's gait was normal. Bilateral flat feet with five degrees of valgus alignment of the Achilles tendon was noted. There was no objective evidence of pain on manipulation, pain on motion, or tenderness to palpation. There was no evidence of edema, instability, or abnormal weight bearing. Motor and sensory finding in the lower extremities were normal. X-rays showed evidence of pes planus. Given the objective evidence of a change to the alignment of the Achilles tendon, as well as the Veteran's ongoing subjective complaints of foot pain, the Board finds that the evidence supports a 10 percent rating as of October 2009. Next, the Board will consider whether the Veteran is entitled to a rating in excess of 10 percent since October 2009. Turning again to the October 2009 VA examination, the examiner specifically found that there was no marked deformity, no pain on manipulation, no pain on motion, no tenderness to palpation, and no edema, instability, callosities, or abnormal weight bearing. As such, the Board finds that the criteria for a 30 percent rating for pes planus have not been met. Finally, the Board has considered whether a higher rating could be awarded for any period on appeal under another diagnostic code. However, there is no evidence that the Veteran had weak foot, claw foot, Morton's disease, hallux valgus, hallux rigidus, hammer toe, malunion or non-union of the tarsal or metatarsal bones, or a foot injury. Therefore, a rating under DCs 5277-5284 is not for application. In conclusion, the Board finds that from May 2006 to October 2009, a compensable rating for pes planus is not warranted. After October 2009, a 10 percent rating is granted. Lumbar Strain with Degenerative Changes In addition to the laws and regulations outlined above, the Board acknowledges that in evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare- ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 ("functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded"); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1993). A VA General Counsel opinion has also held that DC 5293, intervertebral disc syndrome, involved loss of range of motion and that consideration of 38 C.F.R. §§ 4.40 and 4.45 was applicable. See VAOPGCPREC 37-97. The Veteran is seeking a higher rating for lumbar strain with degenerative changes. Service connection was granted for this disability in December 1997 and he was assigned an initial 10 percent rating under DC 5242, effective August 1997. In a December 2009 rating decision, his rating was increased to 20 percent, effective October 2009. Although an increased rating was granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned. AB v. Brown, 6 Vet. App. 35 (1993). In order to warrant a higher rating prior to October 2009, the evidence must show: * forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees (20 percent); * combined range of motion of the thoracolumbar spine not greater than 120 degrees (20 percent); * muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent); * X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations (20 percent under DC 5003); or * incapacitating episodes of intervertebral disc syndrome having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent under DC 5243). Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Moreover, an "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bedrest prescribed by a physician and treatment by a physician. The Board has reviewed the evidence of record and finds that the weight of evidence does not support the next-higher 20 percent rating prior to October 2009. First, the Board finds that there is no basis for a higher rating based on forward flexion of the thoracolumbar spine. In September 2006 VA examination, forward flexion of the lumbar spine was from 0 to 80 degrees (0-90 degrees is anatomically normal). After repetitive motion, forward flexion was reduced to 0 to 66 degrees, but was still not limited to support a higher rating. In October 2007, the Veteran was afforded another VA examination. While he displayed extremely limited range of motion on examination, the examiner stated that the Veteran had 5/5 positive Waddell signs on his back examination, indicating "extreme exaggeration of symptomatology and pain behavior." The examiner noted that the Veteran's subjective complaints were not supported by the objective evidence of record and concluded that he was unable to determine what the Veteran's actual physical abilities are under these circumstances. Accordingly, the Board finds that this VA examination does not accurately reflect the severity of the Veteran's disability and has no probative value in determining the level of his lumbar spine disability. Next, the findings of the September 2006 VA examination do not support a rating based on a combined range of motion. Specifically, even at its most limiting, range of motion was reported as reduced to forward flexion to 66 degrees and extension to 18 degrees with objective pain observed. There was no reported reduction in lateral flexion or rotation. Therefore, under Note (2), the ranges of motion are added together as follows: 66 (forward flexion) + 18 (extension) + 16 (left lateral flexion) + 18 (right lateral flexion) + 24 (right rotation) + 24 (left rotation) = a total of 166 degrees The combined range of motion totaling 166 degrees is well above the level which would support a 20 percent rating, even considering limitation of motion with repetitive use. Further, outpatient treatment records were reviewed by provided no specific reported ranges of motion sufficient to warrant a higher rating based on limitation of forward flexion or on combined range of motion. Next, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour may warrant a higher rating. In the September 2006 VA examination, no muscle spasms were noted, although the Veteran's posture was described as slightly stooped, his movements were somewhat guarded and his gait was restrained, but he had no coordination problems. However, the evidence as a whole does not reveal severe guarding to more nearly approximating the next-higher evaluation. With respect to an increased rating under DC 5003, the evidence of record does not indicate arthritis resulting in occasional incapacitating requiring hospitalization in the past 12 months. Specifically, at the September 2006 VA examination, the Veteran reported that he missed about one day of work a month due to his low back pain and that he had required bed rest prescribed by a physician six different days in the past twelve months. While not confirmed in the record, accepting the Veteran's number of prescribed bedrest, his incapacitating episodes lasted six days, which is less than the total duration greater than two weeks required for a higher rating. Thus a disability rating in excess of 10 percent is not warranted for intervertebral disc syndrome with incapacitating episodes for the period prior to October 2009. With respect to the claim for the period since October 2009, the Veteran's low back disability is rated at 20 percent disabling. In order to warrant a higher rating, the evidence must show: * forward flexion of the thoracolumbar spine 30 degrees or less; * favorable ankylosis of the entire thoracolumbar spine; or * intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (all at 40 percent). The Board has reviewed the evidence of record and finds that the weight of evidence does not support the next-higher 40 percent rating since October 2009. Indeed, an October 2009 VA examination revealed forward flexion to 60 degrees. There was no other objective evidence of pain on motion, spasm, or tenderness, and no additional limitation of motion after three repetitions. Because flexion is not shown at 30 degrees or less, the findings above do not support a 40 percent evaluation. Additionally, the evidence does not reflect ankylosis of the spine. While range of motion is limited, the present level of range of motion does not indicate a fixation of the spine. Moreover, the examiner commented that there was no ankylosis. Therefore, a higher rating based on ankylosis is not warranted. While the Veteran has reported on-going back pain, the evidence does not show that he has been ordered bedrest by a physician. Even accepting his report at the October 2009 VA examination of one episode of prescribed bed rest within the past year lasting five days, his incapacitating episodes did not last a total duration of at least 4 weeks. Thus a disability rating in excess of 20 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome for the period since October 2009. The Board has also considered whether a separate rating for a neurological abnormality is warranted. While the Board has determined that an increased rating is not warranted for the Veteran's lumbar spine disability is not warranted for any period on appeal, the Board notes that both VA treatment notes and VA examination reports contain complaints by the Veteran of pain radiating from his low back into his left lower extremity. Specifically, VA treatment records show that from May 2006 through December 2006, the Veteran sought treatment for complaints of worsening low back pain. In October 2006, he described low back pain that radiated down the left lower extremity with numbness and tingling. In November 2006, he reported pain radiating to both lower extremities, right greater than left. Then in October 2008, he complained that his low back pain had increased after picking up mail at work. While he has occasionally reported pain in both lower extremities, he has not been consistent in reporting pain and numbness in the right lower extremity. The September 2006 VA examination as well as VA treatment notes contain a diagnosis of radiculopathy. Neurological conditions, such as neuralgia, neuritis, and paralysis of the peripheral nerves are rated under 38 C.F.R. § 4.124a. The sciatic nerve is rated pursuant to 38 C.F.R. § 4.124a, DC 8520. Under DC 8520, a 10 percent rating is for application for incomplete paralysis of any extremity when "mild." "Moderate" incomplete paralysis of the sciatic nerve warrants a 20 percent rating; "moderately severe" incomplete paralysis warrants a 40 percent rating; and, "severe, with marked muscular atrophy" incomplete paralysis warrants a 60 percent rating. 38 C.F.R. § 4.124a, DC 8520. The term "incomplete paralysis," with these and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. The Board finds that the evidence supports a rating of 10 percent for mild incomplete paralysis of the sciatic nerve due to the Veteran's radiculopathy of the left lower extremity. This rating is based on his complaints of radiating pain to the left lower extremity extending to his foot, and the medical diagnosis of radiculopathy that is of record. As the evidence is conflicting as to whether or not the right lower extremity is affected, a separate rating is only warranted for the left lower extremity. The Board has determined that a 10 percent disability rating is warranted for the Veteran's symptomatology, as the Veteran's symptoms are wholly sensory with out any evidence of diminished sensation, muscle atrophy, or impaired motor skills. Such findings are best characterized as mild sensory loss. See 38 C.F.R. § 4.124a, DC 8520. With respect to the claims for pes planus and the low back, the Board acknowledges the Veteran's statements indicating that his disabilities are so severe as to merit increased ratings. In this regard, he asserts that his disabilities cause him a significant amount of pain and prevents him from standing or walking for prolonged periods of time. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the pertinent evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the service- connected disabilities are evaluated, to be more probative than the Veteran's assessment of the severity of his disabilities. The Board has also considered whether the Veteran's disabilities warrant referral for extraschedular consideration. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2009). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. The Board is not, however, precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that the schedular rating criteria reasonably reflect the Veteran's disability level and symptomatology. The Veteran's reported difficulties are not so exceptional or unusual a disability picture as to render impractical application of regular schedular standards. Specifically, the evidence does not show the need for frequent hospitalization. It appears that his treatment has been on an outpatient basis. Further, while the Veteran has reported missing days of work because of his disabilities, particularly incapacitating episodes, the rating criteria specifically address this component. Therefore, referral for extraschedular consideration is not warranted. Finally, 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 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 his or her representative, if any, 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). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159. 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 Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (the Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 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, each of the elements of the claim, including notice of what is required to establish service connection. The veteran must also be informed that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by a letter sent to the Veteran in August 2006, prior to the initial RO decision. This letter informed him of what evidence was required to substantiate his claim and of VA and his respective duties for obtaining evidence. He was also informed of how VA assigns disability ratings and effective dates. Therefore, he has been provided with notice of what is required to substantiate a claim for an increased rating. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting a veteran in the procurement of service treatment 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). It appears that all evidence necessary for a fair adjudication of the claim is of record. The RO has obtained the service treatment records, as well as VA and private treatment records. The Veteran was also afforded three VA examinations of both his pes planus and lumbar spine disabilities. Except for the October 2007 VA examination discussed above, the Board finds that the other two examinations were adequate for rating purposes. Specifically, the examiners reviewed the claims file, interviewed the Veteran, and conducted physical examinations. There is no indication that the VA examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Based on the above, no further notice or assistance to the Veteran 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). (CONTINUED ON NEXT PAGE) ORDER A compensable rating for pes planus prior to October 2009 is denied. A rating of 10 percent, but no more, for pes planus since October 2009 is granted. A rating in excess of 10 percent for lumbar strain with degenerative changes prior to October 2009 is denied. A rating in excess of 20 percent for lumbar strain with degenerative changes since October 2009 is denied. A separate compensable rating for radiculopathy of the left lower extremity is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs