Citation Nr: 1017385	
Decision Date: 05/11/10    Archive Date: 05/26/10

DOCKET NO.  04-25 575	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUES

1.  Entitlement to service connection for hypertension, to 
include as secondary to service-connected bilateral pes 
planus with valgus deformity of the ankles, discoid lupus 
erythematosis, and chronic right ankle sprain.    

2.  Entitlement to an increased rating for bilateral pes 
planus with valgus deformity of the ankles, currently rated 
as 30 percent disabling.

3.  Entitlement to an increased rating for discoid lupus 
erythematosus, currently rated as 60 percent disabling.  

4.  Entitlement to a total disability rating based on 
individual unemployability due to service- connected 
disabilities,


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

E. Pomeranz, Counsel


INTRODUCTION

The Veteran had active military service from October 1977 to 
December 1990.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of June 2002 and September 2002 rating 
actions by the Department of Veterans Affairs (VA) Regional 
Office (RO) located in Nashville, Tennessee.

The Veteran testified at a Travel Board hearing before the 
undersigned Veterans Law Judge in August 2005.  A copy of the 
transcript of that hearing is of record.                

In a January 2006 decision, the Board denied the Veteran's 
claim of entitlement to service connection for hypertension.  
The denial was on a direct and secondary basis.  The Board 
also determined that new and material evidence had not been 
received to reopen a previously denied claim for service 
connection for arthritis.  In addition, the Board remanded 
the Veteran's claims for increased ratings for bilateral pes 
planus with valgus deformity of the ankles and discoid lupus 
erythematosus.  

Thereafter, as to the issue of service connection for 
hypertension, the Veteran filed a timely appeal to the United 
States Court of Appeals for Veterans Claims (Court). While 
this case was pending before the Court, the Office of General 
Counsel for VA, on behalf of VA, and the Veteran (the 
parties), filed a Joint Motion, dated in February 2007.  The 
parties requested that the Court partially vacate and remand 
for readjudication the January 2006 decision of the Board to 
the extent that it denied service connection for 
hypertension.  The parties also stated that the issue 
regarding the reopening of the claim for service connection 
for arthritis should be considered abandoned, and that the 
Board's decision to remand the Veteran's claims for increased 
ratings for bilateral pes planus with valgus deformity of the 
ankles and discoid lupus erythematosus should not be 
disturbed.  In an Order, dated in March 2007, the Court 
granted the Joint Motion and vacated that part of the Board's 
January 2006 decision that denied service connection for 
hypertension, and remanded the case pursuant to 38 U.S.C. § 
7252(a), for compliance with the directives stipulated in the 
Joint Motion.  Copies of the Court's Order and the Joint 
Motion have been placed in the claims file.

By a July 2007 decision, the Board remanded the Veteran's 
claim of entitlement to service connection for hypertension.  
The case was again returned to the Board.  Subsequently, the 
Board referred the case for an independent medical expert 
(IME) in October 2009.  An IME opinion was obtained in 
December 2009.  The case was returned to the Board for 
adjudication.

The issues of entitlement to an increased rating for discoid 
lupus erythematosus, and entitlement to a total disability 
rating based on individual unemployability (TDIU) due to 
service-connected disabilities, 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.


FINDINGS OF FACT

1.  Hypertension was not shown during service or for many 
years thereafter; the preponderance of the evidence is 
against a nexus between a current diagnosis of hypertension 
and service; the preponderance of the evidence is against a 
finding that the Veteran's service-connected pes planus with 
valgus deformity of the ankles, discoid lupus erythematosis, 
and/or chronic right ankle sprain caused or aggravated her 
hypertension.

2.  Prior to August 24, 2005, the Veteran's bilateral pes 
planus with valgus deformity of the ankles was no more than 
severe; marked pronation, extreme tenderness of plantar 
surfaces of the feet, marked inward displacement, and severe 
spasm of the tendo Achilles on manipulation were not shown.  

3.  From August 25, 2005, to the present, the Veteran's 
bilateral pes planus with valgus deformity of the ankles is 
pronounced and manifested by marked pes planus with severe 
pronation deformity and significant pain, and unimprovement 
by orthopedic shoes and appliances.  


CONCLUSIONS OF LAW

1.  Hypertension was not incurred in or aggravated by active 
military service, nor may hypertension be presumed to have 
been incurred therein; hypertension is not proximately due to 
or the result of a service-connected disability.  38 U.S.C.A. 
§§ 1110, 1112, 1113, 1131, 5103A, 5107 (West 2002 & Supp. 
2009); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.307, 
3.309 (2009).   

2.  For the period prior to August 24, 2005, the criteria for 
a rating in excess of 30 percent for bilateral pes planus 
with valgus deformity of the ankles were not met.  
38 U.S.C.A. §§  1155, 5103, 5103A, 5107 (West 2002 & Supp. 
2009); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.71a, 
Diagnostic Code 5276 (2009).      

3.  For the period since August 25, 2005, the criteria for a 
50 percent rating, but no more, for bilateral pes planus with 
valgus deformity of the ankles have been met.  38 U.S.C.A. 
§§  1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 
38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.71a, Diagnostic 
Code 5276 (2009).   






REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 
5103, 5103A, 5107 (West 2002), significantly changed the law 
prior to the pendency of these claims.  VA has issued final 
regulations to implement these statutory changes.  See 38 
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).  The VCAA 
provisions include an enhanced duty to notify a claimant as 
to the information and evidence necessary to substantiate a 
claim for VA benefits, and they redefine the obligations of 
VA with respect to the duty to assist the veteran with the 
claim.  In the instant case, the Board finds that VA 
fulfilled its duties to the Veteran under the VCAA. 

Duty to Notify

VA has a duty to notify the veteran of any information and 
evidence needed to substantiate and complete a claim.  38 
U.S.C.A. §§ 5102, 5103.  The Board concludes that the March 
2002, July 2002, July 2005, and August 2007 letters sent to 
the Veteran by the RO adequately apprised her of the 
information and evidence needed to substantiate the claims.  
The RO thus complied with VCAA's notification requirements.

In order to meet the requirements of 38 U.S.C. § 5103(a) and 
38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the 
claimant about the information and evidence necessary to 
substantiate the claim; (2) inform the claimant about the 
information and evidence that VA will seek to provide; and 
(3) inform the claimant about the information and evidence 
the claimant is expected to provide.  Beverly v. Nicholson, 
19 Vet. App. 394, 403 (2005) (outlining VCAA notice 
requirements).

Additionally, during the pendency of this appeal, on March 3, 
2006, the Court issued a decision in Dingess v. Nicholson, 19 
Vet. App. 473, 484, 486 (2006), which held that the VCAA 
notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 
3.159(b) apply to all five elements of a service connection 
claim.  Those five elements include: (1) veteran status; (2) 
existence of a disability; (3) a connection between the 
veteran's service and the disability; (4) degree of 
disability; and (5) effective date of the disability.  The 
Court held that upon receipt of an application for a service-
connection claim, 38 U.S.C.A. § 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 the elements of the claim as 
reasonably contemplated by the application.  Id., at 486.  
This notice must also inform the veteran that a disability 
rating and an effective date for the award of benefits will 
be assigned if service connection is granted.  Id.

The Board finds that VA has met these duties with regard to 
the claims adjudicated on the merits in this decision.  There 
is no issue as to providing an appropriate application form 
or completeness of the application.  Written notice provided 
in March 2002, July 2002, July 2005, and August 2007 fulfills 
the provisions of 38 U.S.C.A. § 5103(a).  That is, the 
Veteran received notice of the evidence needed to 
substantiate her claims, the avenues by which she might 
obtain such evidence, and the allocation of responsibilities 
between herself and VA in obtaining such evidence.  See 
Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. 
Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd 
on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  In 
addition, the August 2007 letter informed her about how VA 
determines effective dates and disability ratings, as 
required by Dingess.    

The Board also recognizes that, according to Pelegrini v. 
Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice 
must "precede an initial unfavorable [agency of original 
jurisdiction (AOJ)] decision on a service-connection claim."  
With respect to the increased rating claim, written notice 
was provided in March 2002, prior to the June 2002 rating 
decision, and in July 2002, prior to the September 2002 
rating decision, along with the subsequent notice provided in 
July 2005 and August 2007, after the decisions that are the 
subject of this appeal.  With respect to the service 
connection claim, the Board recognizes that written notice 
was provided in July 2002, which was after the June 2002 
rating action but prior to the September 2002 rating action.  
In addition, written notice was further provided in July 2005 
and August 2007, which was after the decisions that are the 
subject of this appeal.  However, despite any timing 
deficiency with respect to these notices, the Board finds no 
prejudice to the Veteran in proceeding with the issuance of a 
final decision.  See Bernard, 4 Vet. App. at 384, 394 (where 
the Board addresses a question that has not been addressed by 
the agency of original jurisdiction, the Board must consider 
whether the veteran has been prejudiced thereby).  Any timing 
defect was cured with re-adjudicating all of the Veteran's 
claims in January 2008 and July 2008 supplemental statements 
of the case.  Prickett v. Nicholson, 20 Vet. App. 370, 376-78 
(2006) (validating the remedial measures of issuing fully 
compliant VCAA notification and re-adjudicating the claim in 
the form of a statement of the case to cure timing of 
notification defect).

The Court has held that a supplemental statement of the case 
that complies with applicable due process and notification 
requirements constitutes a readjudication decision.  See 
Mayfield v. Nicholson, 20 Vet. App. 537, 541- 42 (2006) 
(Mayfield III); see also Prickett, 20 Vet. App. at 376-78 
(holding that a statement of the case that complies with all 
applicable due process and notification requirements 
constitutes a readjudication decision).  As the 2008 
supplemental statements of the case complied with the 
applicable due process and notification requirements for a 
decision, it constitutes a readjudication decision.  
Accordingly, the provision of adequate notice followed by a 
readjudication "cures" any timing problem associated with 
inadequate notice or the lack of notice prior to an initial 
adjudication.  Mayfield III, 20 Vet. App. at 541-42, citing 
Mayfield v. Nicholson, 444 F.3d 1328, 133-34 (Fed. Cir. 2006) 
(Mayfield II).

The Board is cognizant that the VCAA letters issued by the RO 
did not provide notice of the elements of a secondary service 
connection claim, and the Veteran has asserted that her 
hypertension is secondary to service-connected disabilities.  
However, the evidence of record indicates that the Veteran 
had actual knowledge of what is necessary to substantiate her 
claim on a secondary basis.  Actual knowledge is established 
by statements or actions by the claimant or the claimant's 
representative that demonstrate an awareness of what was 
necessary to substantiate his or her claim.  See Vazquez-
Flores v. Peake, 22 Vet. App. 37 (2008) citing Dalton v. 
Nicholson, 21 Vet. App. 23, 30-31 (2007).  In this case, the 
Veteran has demonstrated knowledge of the elements necessary 
to establish service connection on a direct and secondary 
basis, as shown in the August 2005 Travel Board hearing and 
in various statements submitted throughout the appeal in 
which she argued that her hypertension was related to her 
military service and/or her service-connected bilateral pes 
planus with valgus deformity of the ankles, discoid lupus 
erythematosis, and chronic right ankle sprain.  Consequently, 
any failure by the VA to notify the Veteran of the elements 
of secondary service connection constitutes harmless error 
and does not prejudice the Veteran.

The Board notes that the U.S. Court of Appeals for Veteran 
Claims previously held that, with respect to claims for an 
increased rating, a detailed notice, tailored to the specific 
aspects of each claim, must be provided under 38 U.S.C.A. § 
5103(a).  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).  
However, the Federal Circuit reversed that decision, holding 
that what is required is generic notice of the type of 
evidence needed to substantiate the claim, namely, evidence 
demonstrating a worsening or increase in severity of the 
disability and the effect that worsening has on employment 
and earning capacity, as well as general notice regarding how 
disability ratings and effective dates are assigned.  
Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009); Dingess, 19 
Vet. App. at 473.  The Board finds that the May 2002, July 
2002, July 2005, and August 2007 letters substantially 
satisfy the current notification requirements for the claim 
for an increased rating for the Veteran's pes planus.  

As the Veteran has not indicated any prejudice caused by a 
content error and no such error is apparent, the Board finds 
no basis for finding prejudice against the Veteran's appeal 
of the issue adjudicated in this decision.  See Shinseki v. 
Sanders, 129 S. Ct. 1696 (2009) regarding the rule of 
prejudicial error.

The Veteran has been provided the opportunity to respond to 
VA correspondence and over the course of the appeal has had 
multiple opportunities to submit and identify evidence.  
Furthermore, she has been provided a meaningful opportunity 
to participate effectively in the processing of her claims by 
VA.



Duty to Assist

VA also has a duty to assist the veteran in obtaining 
evidence necessary to substantiate the claim.  38 U.S.C.A. § 
5103A(a) ("The Secretary shall make reasonable efforts to 
assist a claimant in obtaining evidence necessary to 
substantiate the . . . claim").  This duty includes 
assisting the veteran in obtaining records and providing 
medical examinations or obtaining medical opinions when such 
are necessary to make a decision on the claim.  38 U.S.C.A. 
§ 5103A(b), )c ), (d) (setting forth Secretary's various 
duties to claimant).      

VA informed the Veteran of its duty to assist in obtaining 
records and supportive evidence.  In addition, with respect 
to the Veteran's service connection claim, in August 2007, 
the Veteran underwent a VA examination.  At that time, the 
examiner addressed the pertinent question of whether the 
Veteran's currently diagnosed hypertension was related to her 
period of active service, or, in the alternative, whether her 
current hypertension was caused or aggravated by her service-
connected bilateral flat feet with valgus deformity of the 
ankle, discoid lupus erythematosis, and/or chronic right 
ankle sprain.  Moreover, in October 2009, the Board sought 
the opinion of an independent medical expert regarding the 
aforementioned questions.  The opinions were thorough in 
nature and provide findings that are adequate for 
adjudication of the Veteran's service connection claim.  
Therefore, the Board finds that the medical evidence of 
record is sufficient to resolve this appeal, and the VA has 
no further duty to provide an examination or obtain another 
opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c )(4); 
see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).      

With respect to the increased rating claim, the Veteran 
received VA examinations in May 2002 and February 2008, which 
were thorough in nature and adequate for the purposes of 
deciding this claim.  The aforementioned examinations 
revealed findings that are adequate for rating the Veteran's 
pes planus.  Thus, the Board finds that the medical evidence 
of record is sufficient to resolve this appeal; VA has no 
further duty to provide an examination or medical opinion. 38 
C.F.R. §§ 3.326, 3.327.

Based on the foregoing, it is the Board's determination that 
the VA fulfilled its VCAA duties to notify and to assist the 
Veteran, and thus, no additional assistance or notification 
was required.  The Veteran has suffered no prejudice that 
would warrant a remand, and her procedural rights have not 
been abridged.  See Bernard v. Brown, 4 Vet. App. 384.

II.  Service Connection Claim

A.  Pertinent Law and Regulations

Service connection may be established for disability 
resulting from personal injury suffered or disease contracted 
in line of duty, or for aggravation of a pre-existing injury 
suffered or disease contracted in line of duty.  38 U.S.C.A. 
§§ 1110, 1131; 38 C.F.R. § 3.303.  

Service connection generally requires evidence of a current 
disability with a relationship or connection to an injury or 
disease or some other manifestation of the disability during 
service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 
2000). Where the determinative issue involves medical 
causation or a medical diagnosis, there must be competent 
medical evidence to the effect that the claim is plausible; 
lay assertions of medical status do not constitute competent 
medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 
(1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 
(1992).

Alternatively, the nexus between service and the current 
disability can be satisfied by medical or lay evidence of 
continuity of symptomatology and medical evidence of a nexus 
between the present disability and the symptomatology.  See 
Voerth v. West, 13 Vet. App. 117 (1999).

Under 38 C.F.R. § 3.303(b), service connection may be awarded 
for a "chronic" condition when: (1) a chronic disease 
manifests itself and is identified as such in service (or 
within the presumptive period under 38 C.F.R. § 3.307) and 
the veteran presently has the same condition; or (2) a 
disease manifests itself during service (or during the 
presumptive period), but is not identified until later, and 
there is a showing of continuity of related symptomatology 
after discharge, and medical evidence relates that 
symptomatology to the veteran's present condition.  Savage v. 
Gober, 10 Vet. App. 488, 495-98 (1997).

For certain chronic disorders, including cardiovascular-renal 
disease, to include hypertension, service connection may be 
granted if the disease becomes manifest to a compensable 
degree within one year following separation from service.  38 
U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Service connection may also be established on a secondary 
basis for a disability which is shown to be proximately due 
to or the result of a service-connected disease or injury.  
38 C.F.R. § 3.310(a).  Establishing service connection on a 
secondary basis requires evidence sufficient to show (1) that 
a current disability exists and (2) that the current 
disability was either (a) caused by a service-connected 
disability or (b) aggravated by a service- connected 
disability.  Id.; Allen v. Brown, 7 Vet. App. 439, 488 (1995) 
(en banc).  The Court has held that, when aggravation of a 
veteran's non-service-connected disability is proximately due 
to or the result of a service-connected disease or injury, it 
too shall be service connected, at least to the extent of the 
aggravation.  Allen, 7 Vet. App. at 439.

Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to 
implement the holding in Allen v. Brown, 7 Vet. App. 439 
(1995) for secondary service connection on the basis of the 
aggravation of a nonservice-connected disorder by service-
connected disability; additionally, other substantive changes 
were made.  As the claim was filed before the other 
substantive changes were made, only the changes that conform 
to Allen apply.   See 71 Fed. Reg. 52744 (2006).  

B.  Factual Background

The Veteran asserts that her currently diagnosed hypertension 
began during service. She points out numerous readings noted 
in her service treatment records showing elevated blood 
pressure, but concedes that she was not diagnosed as having 
hypertension until approximately 1999 or 2000.  In the 
alternative, the Veteran contends that her service-connected 
bilateral pes planus with valgus deformity of the ankles, 
discoid lupus erythematosis, and/or chronic right ankle 
sprain caused or aggravated her hypertension.  According to 
the Veteran, she experienced high blood pressure during 
service due to her lupus and/or foot and ankle disabilities.  
She reports at present, the pain and swelling in her feet 
causes her blood pressure to elevate.  

Service treatment records reflect elevated blood pressure 
readings on numerous occasions.  At no time during the 
Veteran's service or upon her discharge from service was she 
determined to have hypertension.  The Veteran was discharged 
from active service in 1990 due to a diagnosis of lupus.

Post-service treatment records show treatment for various 
disabilities throughout the 1990's with no complaints of or 
treatment for hypertension.  The first notation of a 
diagnosis of hypertension is dated in August 2000; the 
treatment note shows that the Veteran was started on 
medication that day.  Treatment records do not, however, make 
any reference to the etiology of the diagnosed hypertension.

In December 2003, the Veteran underwent a VA examination.  At 
that time, she stated that she smoked a pack of cigarettes 
every two to three days for the last 20 years or more.  She 
also noted that she would drink alcohol on the week-ends.  
Following the physical examination, the examiner diagnosed 
the Veteran with essential hypertension.  Additionally, the 
examiner stated that there was no medical literature showing 
that essential hypertension was related to lupus.

In August 2005, the Veteran testified at a Travel Board 
hearing before the undersigned Veterans Law Judge.  At that 
time, she stated that during her visits to the infirmary 
while she was in the military, her blood pressure readings 
were elevated.  She noted that she continued to have elevated 
blood pressure readings after her discharge, and that she was 
eventually diagnosed with hypertension in 2000.  According to 
the Veteran, her currently diagnosed hypertension was related 
to her period of service, specifically to the elevated blood 
pressure readings noted during service.  In the alternative, 
the Veteran maintained that her service-connected lupus 
caused or aggravated her hypertension.      

In a private medical statement, dated in June 2007, H.G.B., 
M.D., stated that he had been asked by the Veteran to 
evaluate her past medical record and provide an opinion as to 
whether her current hypertension was present during her 
military service.  According to Dr. B., following a review of 
the Veteran's claims file, it was his opinion that more 
probably than not, the Veteran's hypertension was present as 
labile hypertension during service.  Dr. B. stated that the 
Veteran's hypertension continued and progressed to essential 
hypertension requiring pharmacological treatment after 
separation.  Dr. B. further opined that the Veteran's 
hypertension was aggravated by her joint, feet, and ankle 
problems because they curtailed her ability to exercise 
routinely and exercise ameliorated the progression of 
hypertension by lowering blood pressure.        

In a private medical statement, written in June 2007 
(although the statement is dated in June 2006, it is clear 
from the context that it was written in June 2007), C.N.B., 
M.D., stated that he concurred with the June 2007 opinion 
from Dr. H.G.B.  According to Dr. C.N.B., it was his opinion 
that the Veteran's currently diagnosed hypertension 
originated in service.      

In August 2007, the Veteran underwent a VA examination that 
was conducted by S.P., M.D.  At that time, Dr. P. stated that 
he had reviewed the Veteran's claims file.  Following the 
physical examination, he diagnosed the Veteran with essential 
hypertension.  Dr. P. opined that the onset of the Veteran's 
hypertension was on August 28, 2000, and that it was not 
likely that the Veteran's currently diagnosed hypertension 
was causally related to her period of military service, to 
include her in-service elevated blood pressure readings.  Dr. 
P. reported that the Veteran's in-service high blood pressure 
readings occurred when there was a known precipitating 
factor.  For example, Dr. P. noted that on December 21, 1988, 
the Veteran's blood pressure was 141/93 when she had pelvic 
pain and was diagnosed with menstrual cramps.  In addition, 
on November 8, 1979, the Veteran's blood pressure was 124/102 
when she had generalized body rash, and that blood pressure 
reading was reduced to 112/82 the next day.  Thus, Dr. P. 
concluded that it was unlikely that the Veteran's currently 
diagnosed hypertension, diagnosed 10 years after her 
discharge, was related to her period of military service.  
Dr. P. further indicated that in regard to the question of 
whether the Veteran's hypertension was proximately due to or 
the result of her service-connected lupus and/or flat feet, 
it was his opinion that the aforementioned question could not 
be answered without resorting to mere speculation because the 
Veteran had significant other factors contributing to pain 
which could contribute to increased blood pressure, such as 
chronic low back pain and bilateral knee pain.  Dr. P. also 
noted that the Veteran was a chronic smoker which could 
contribute to hypertension.       

In October 2009, the Board sought the opinion of an IME.  
Specifically, the specialist was requested to provide an 
opinion as to whether it was at least as likely as not (50 
percent or greater degree of probability, which the Board 
parenthetically notes is the correct burden of proof-see 38 
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102), that the Veteran's 
currently diagnosed hypertension was related to her period of 
active service?  The specialist was requested to review 
specified elevated blood pressure readings that were shown in 
the Veteran's service treatment records.  If the response to 
the aforementioned question was negative, the specialist was 
requested to provide an opinion on whether it was at least as 
likely as not (50 percent or greater probability) that any 
currently diagnosed hypertension was caused or aggravated by 
the service-connected discoid lupus erythematosis, bilateral 
flat feet with valgus deformity of the ankle, and/or a 
chronic right ankle sprain?  In responding to the above 
questions, the specialist was requested to discuss the 
discrepancies in the evidence of record regarding the 
questions of whether the Veteran's currently diagnosed 
hypertension was related to her period of service, or, in the 
alternative, whether her current hypertension was caused or 
aggravated by her service-connected bilateral flat feet with 
valgus deformity of the ankle, discoid lupus erythematosis, 
and/or chronic right ankle sprain?          

In December 2009, an IME opinion was provided by S.K., M.D., 
FACC (Fellow of the American College of Cardiology), FASE 
(Fellow of the American Society of Echocardiography).  In the 
IME statement, Dr. K. stated that after reviewing all of the 
medical records submitted to her by the VA, she had concluded 
that the Veteran was not entitled to service connection for 
hypertension because the proximal causation between her 
hypertension and injury suffered in service could not be 
linked with the likelihood of 50 percent or more for either 
discoid lupus or her problems with her feet.  According to 
Dr. K., a review of the pertinent medical evidence of record 
demonstrated that the Veteran had multiple other major risk 
factors for development/progression of hypertension such as 
smoking and obesity that were much more "tightly" linked to 
hypertension.  The Veteran had been a smoker since she was 18 
years old and did not quit despite multiple recommendations.  
Moreover, the Veteran's current Body Mass Index (BMI) was in 
the severely obese category.  Dr. K. also reported that there 
was evidence of record which showed that the Veteran had a 
history of alcohol abuse, including drinking three alcoholic 
drinks a day which was higher than recommended for women and 
was consequential to one's health.  According to Dr. K., 
alcohol was well known to elevate blood pressure.  Dr. K. 
further reported that the evidence of record included a 
documented case of the Veteran appearing intoxicated at a 
clinic in February 2006 and being anxious having elevated 
blood pressure in that setting.      

In the December 2009 IME report, Dr. K. stated that a review 
of the Veteran's service treatment records showed that in 
October 1979, she had a blood pressure reading of 130/70.  
However, her elevated blood pressure reading was associated 
with a body rash.  In addition, in April 1980, when she once 
again had an elevated blood pressure reading, it was 
associated with severe bleeding and menstrual cramps, which 
was normal physiologic response to pain.  The Veteran also 
struggled for a long time with headaches and had taken 
medication such as BC powder which contained caffeine and 
thus would exacerbate blood pressure abnormality.  She 
initially did not have elevated blood pressure while in 
service.  The Veteran had an abortion, miscarriage, and then 
started taking oral birth control pills in August 1977.  It 
was well known that oral contraceptives (OC) could elevate 
blood pressure.  In addition, she continued to smoke while on 
OC despite recommendations to quit.  A number of recorded 
blood pressure elevations were temporarily associated with a 
pain complex.  The Veteran struggled with headache, pelvic 
pain, and then hip/back pain after a motor vehicle accident.  
Her weight steadily climbed throughout her life and she had a 
sister with hypertension.  In April 1996, it was reported 
that the Veteran had dietary indiscretion with salt intake.  
She also experienced uterine bleeding which led to many ER 
visits in pain and subsequently increased blood pressure.  
According to Dr. K., it was SLE (systemic lupus 
erythematosus), not DLE (discoid lupus erythematosus), that 
could result in hypertension.  Even though the Veteran's foot 
problem could have made it more difficult for her to run or 
walk, she could have still swam or potentially biked.  
Although exercise was known to decrease hypertension, it was 
Dr. K.'s opinion that the Veteran's social habits of smoking, 
eating a salty diet, and potentially drinking, did a lot more 
harm to her blood pressure than lack of exercise.  The 
Veteran's obesity also aggravated her musculoskeletal 
problems.  Dr. K. noted that hypertension was an age-related 
disease that worsened with age.  It was often that labile 
hypertension progressed to chronic hypertension with age.  
Also, continued poor social habits such as smoking and 
drinking (alcohol or caffeinated beverages) would promote 
exacerbations of hypertension and accelerate age-related 
changes.  In summary, Dr. K. concluded that the Veteran's 
hypertension was not proximately due to or a result of a 
service-connected disease or injury.              

C.  Analysis

Based on a thorough review of the record, the Board finds 
that the preponderance of the evidence is against the 
Veteran's claim for service connection for hypertension, to 
include as secondary to service-connected bilateral pes 
planus with valgus deformity of the ankles, discoid lupus 
erythematosis, and chronic right ankle sprain.   

The Board recognizes that the Veteran's service treatment 
records reflect elevated blood pressure readings on numerous 
occasions.  However, at no time during the Veteran's service 
or upon her discharge from service was she determined to have 
hypertension of any nature, to include labile, essential or 
chronic.  The Veteran was discharged from active service in 
1990 due to a diagnosis of lupus.

The first evidence of record of a diagnosis of hypertension 
is in August 2000, over nine and a half years after the 
Veteran's discharge.  With respect to negative evidence, the 
Court held that the fact that there was no record of any 
complaint, let alone treatment, involving the Veteran's 
condition for many years could be highly probative.  See 
Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub 
nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000), 
[it was proper to consider the Veteran's entire medical 
history, including a lengthy period of absence of 
complaints].    

As for continuity of symptomatology since service, aside from 
the absence of persuasive medical evidence, other evidence 
also does not support this proposition.  See 38 C.F.R. § 
3.303(b)(If there is no evidence of a chronic condition 
during service or an applicable presumptive period, then a 
showing of continuity of symptomatology after service may 
serve as an alternative method of establishing service 
connection). For example, the Veteran initially applied for 
compensation benefits in January 1991, at which time she 
listed seven disabilities.  Hypertension was not listed.  As 
such, this tends to show that the Veteran did not consider 
elevated blood pressure a concern at that time.  Similarly, 
when she was afforded a VA examination in May 1991, she again 
listed her "present complaints," none of which included 
hypertension; on physical examination, there were no 
pertinent complaints or findings.  Throughout the years up 
until her current claim, she had kept in touch with VA for 
various reasons, none of which involved hypertension.  This 
evidence is against the claim.    

The Board also notes that, as there is no medical evidence of 
cardiovascular disease, to include hypertension, within one 
year subsequent to service discharge, the presumptive 
provisions for this disease found in 38 C.F.R. §§ 3.307 and 
3.309 are not applicable.  

In regard to the pertinent questions of whether the Veteran's 
currently diagnosed hypertension is related to her period of 
service, or, in the alternative, whether her current 
hypertension was caused or aggravated by her service-
connected bilateral flat feet with valgus deformity of the 
ankle, discoid lupus erythematosis, and/or chronic right 
ankle sprain, the Board notes that there are discrepancies in 
the medical opinions of record.  Upon a review of the medical 
opinions which support the Veteran's claim, the Board 
recognizes the private medical statements from Drs. H.B. and 
C.B., dated in June 2007.  In the private medical statement 
from Dr. H.B., he opined that more probably than not, the 
Veteran's hypertension was present as labile hypertension 
during service and progressed to essential hypertension after 
separation.  Dr. H.B. further opined that the Veteran's 
hypertension was aggravated by her service-connected 
bilateral pes planus with valgus deformity of the ankles and 
chronic right ankle sprain because they curtailed her ability 
to exercise routinely and exercise ameliorated the 
progression of hypertension by lowering blood pressure.  In 
the private medical statement from Dr. C.B., he concurred 
with the opinion from Dr. H.B.  

Upon a review of the medical opinions which oppose the 
Veteran's claim, the Board notes that in the August 2007 VA 
examination report, Dr. P. opined that it was not likely that 
the Veteran's currently diagnosed hypertension was causally 
related to her period of military service, to include her in-
service elevated blood pressure readings.  Specifically, Dr. 
P. noted that the Veteran's in-service high blood pressure 
readings occurred when there was a known precipitating 
factor, such as menstrual cramps or a body rash.  In the 
December 2009 IME statement, Dr. K. concurred with Dr. P. by 
noting that in April 1980, when the Veteran had an elevated 
blood pressure reading, it was associated with severe 
bleeding and menstrual cramps, which was a normal physiologic 
response to pain.  In addition, Dr. K. identified numerous 
etiological factors of the Veteran's hypertension, such as 
smoking, alcohol abuse, obesity, oral contraceptives, a salty 
diet, uterine bleeding, and chronic low back, hip, and pelvic 
pain.  In this regard, the Board notes that Dr. P. had also 
reported that the Veteran was a chronic smoker which could 
contribute to hypertension.  Furthermore, Dr. K. opined that 
the Veteran's poor social habits such as smoking and drinking 
did a lot more harm to her blood pressure than lack of 
exercise.  Thus, it was the Veteran's poor social habits that 
aggravated her hypertension rather than her inability to 
exercise due to her service-connected bilateral pes planus 
with valgus deformity and chronic right ankle sprain.  

In this case, the Board finds that the probative value of the 
opinions from Drs. H.B. and C.B. are diminished by several 
factors.  Although Drs. H.B. and C.B. reported that they had 
reviewed pertinent records, the Board observes that neither 
physician referred to the Veteran's history of smoking, 
alcohol abuse, obesity, oral contraceptives, a salty diet, 
uterine bleeding, and chronic low back, hip, and pelvic pain, 
which, as noted above, were discussed by the IME specialist 
as viable etiological factors of the Veteran's hypertension.  
In addition, both Drs. H.B. and C.B. maintain, in essence, 
that the Veteran's elevated blood pressure readings during 
service represented labile hypertension which progressed to 
essential hypertension after separation.  Thus, they contend 
that service connection is warranted based on continuity of 
symptomatology.  However, Drs. H.B. and Dr. C.B. failed to 
address that on numerous occasions, there were other 
explanations for the in-service elevated blood pressure 
readings, such as menstrual cramps or a body rash, as noted 
by Drs. P. and K.   That is, Drs. H.B. and Dr. C.B. did not 
recognize or discuss whether the in-service spike of elevated 
blood pressure was only temporary due to a certain discrete 
event at the time.  

With respect to Dr. H.B.'s opinion that the Veteran's 
hypertension was aggravated by her service-connected 
bilateral pes planus with valgus deformity of the ankles and 
chronic right ankle sprain because they curtailed her ability 
to exercise routinely, he did not recognize, as the IME did, 
that the Veteran could have participated in other exercises, 
such as swimming or possibly biking.  For the foregoing 
reasons, the Board finds that the medical opinions from Drs. 
H.B. and C.B. are of minimal, if any, probative value.  See 
Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997); Hayes 
v. Brown, 5 Vet. App. 60, 69 (1993) ("[i]t is the 
responsibility of the BVA . . . to assess the credibility and 
weight to be given the evidence").  While the Board may not 
ignore a medical opinion, it is certainly free to discount 
the relevance of a physician's statement.  See Sanden v. 
Derwinski, 2 Vet. App. 97 (1992).      

Drs. H.B. and Dr. C.B. failed to discuss many of the 
etiological factors associated with hypertension that 
specifically applied to the Veteran, again thereby 
diminishing the probative value of their opinions.  By 
contrast, the Board attaches significant probative value to 
the conclusions reached by Drs. P. and K.  The Board finds 
that these opinions are clearly based upon a review of the 
relevant evidence in the claims file and a thorough 
discussion of all etiological factors.  With respect to Dr. 
K.'s opinion, she provided specific citation to the clinical 
record and discussed the Veteran's history of smoking, 
alcohol abuse, obesity, oral contraceptives, a salty diet, 
uterine bleeding, and chronic low back, hip, and pelvic pain.  
Dr. P. also discussed the Veteran's history of smoking and 
chronic pain.  In addition, the opinions of Drs. P. and K. 
are supported by a rationale.  As stated above, while both 
Drs. P. and K. recognized the Veteran's in-service elevated 
blood pressure readings, they also noted that there were 
explanations for the elevated blood pressure readings, such 
as menstrual cramps or a body rash.  Thus, in light of the 
above, the Board finds the opinions from Drs. P. and K. are 
more persuasive because they are based on a thorough review 
of the record, unlike the opinions from Drs. H.B. and C.B.  
Furthermore, the opinions are clearly supported by the record 
(i.e., although the Veteran's service treatment records 
reflect elevated blood pressure readings on numerous 
occasions, at no time during the Veteran's service or upon 
her discharge from service was she determined to have 
hypertension, and the first evidence of record of a diagnosis 
of hypertension is in August 2000, over nine and a half years 
after the Veteran's discharge, which is itself significant 
and weighs against the contended causal relationship).  

The Board has considered the Veteran's statements to the 
effect that her currently diagnosed hypertension is either 
linked to her period of active service, or, in the 
alternative, that her hypertension was caused or aggravated 
by her service-connected bilateral pes planus with valgus 
deformity of the ankles, discoid lupus erythematosis, and/or 
chronic right ankle sprain.  However, competent medical 
evidence is required in order to grant service connection for 
the claim.  The Board acknowledges that the Veteran can 
provide competent evidence about what she experienced; for 
example, her statements are competent evidence as to what 
symptoms she experienced.  See e.g., Layno v. Brown, 6 Vet. 
App. 465 (1994). However, the Veteran's statements, as a lay 
person, are not competent evidence that any symptoms that she 
experienced in service were due to hypertension or that a 
relationship exists between her hypertension and her military 
service and/or service-connected bilateral pes planus with 
valgus deformity of the ankles, discoid lupus erythematosis, 
and chronic right ankle sprain.  As the record does not 
reflect that the Veteran possesses a recognized degree of 
medical knowledge, her opinion that her currently diagnosed 
hypertension is either linked to her period of active 
service, or, in the alternative, was caused or aggravated by 
her service-connected bilateral pes planus with valgus 
deformity of the ankles, discoid lupus erythematosis, and/or 
chronic right ankle sprain, is not competent evidence.  See 
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).    

In view of the foregoing, the Board concludes that the 
preponderance of the evidence is against the Veteran's claim 
for service connection for hypertension, to include as 
secondary to service-connected bilateral pes planus with 
valgus deformity of the ankles, discoid lupus erythematosis, 
and chronic right ankle sprain.  In reaching this decision, 
the Board considered the doctrine of reasonable doubt. 
However, since the preponderance of the evidence is against 
the claim, the benefit of the doubt doctrine does not apply 
and the claim must be denied.  38 U.S.C.A. § 5107(b); Ortiz 
v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) 
(holding that "the benefit of the doubt rule is inapplicable 
when the preponderance of the evidence is found to be against 
the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).     


III.  Increased Rating Claim

A.  Factual Background

By an October 1991 rating action, the RO granted service 
connection for bilateral flat feet with valgus deformity of 
the ankles.  The RO assigned a 10 percent disability rating 
under Diagnostic Code 5276, effective from December 8, 1990, 
for the Veteran's service-connected flat feet.  In addition, 
the RO granted service connection for chronic right ankle 
sprain and assigned a noncompensable disability rating, 
effective from December 8, 1990.  

VA Medical Center (VAMC) outpatient treatment records, dated 
from September 1999 to February 2002, show that in November 
2001 and February 2002, the Veteran was given arch supports.  

In March 2002, the Veteran requested that her service- 
connected pes planus be reevaluated for a higher rating.

In a VA Form 21-4138, Statement in Support of Claim, dated in 
April 2002, the Veteran stated that her feet were in "bad 
condition" and that her ankles "nearly touched the floor."  
She reported that she had pain in her feet and that walking 
aggravated the pain.  According to the Veteran, due to her 
flat feet, she had to wear orthodontics which were not 
helping.  

In May 2002, the Veteran underwent a VA examination.  At that 
time, she stated that she had recurrent swelling of both legs 
and feet.  The Veteran indicated that she could walk "okay" 
for short periods of time but that extended periods of 
weightbearing were "bothersome."  She had orthopedic shoes 
from the VA and she also wore molded arch supports.  The 
Veteran worked as a maintenance supply clerk and was on her 
feet for approximately three to four hours a day.  She had 
missed work on occasion secondary to pain and swelling of the 
feet.  The Veteran took arthritis medication for her feet.      

Upon physical examination, the Veteran walked with a 
satisfactory gait pattern.  Examination of the feet revealed 
rather significantly pronated feet with grade I pes planus, 
bilaterally.  Examination of the right ankle revealed no 
evidence of redness, heat, or swelling.  There was no pain on 
motion of the right ankle.  There was slight swelling about 
the ankle with some tenderness to palpation about the medial 
as well as the lateral aspect of the right ankle.  There was 
no Achilles tendon spasm or displacement, and there was no 
pain with manipulation.  The Veteran had a small nontender 
keratosis on the plantar aspect of the midfoot region in the 
right foot.  Examination of the left ankle and foot revealed 
no evidence of Achilles tendon spasm or displacement.  There 
was no pain on motion nor was there any pain with 
manipulation of the foot.  There was no plantar tenderness or 
callus formation noted.  There was slight swelling and 
tenderness of the left ankle.  The Veteran was able to heel 
and toe walk and was able to squat and arise again.  The 
diagnosis was bilateral flat feet.  The examiner noted that 
pain would further limit functional ability during a flare-up 
or with increased use.  However, the examiner stated that it 
was not feasible to express any of that in terms of 
additional limitation of motion as those matters could not be 
determined with any degree of medical certainty.  An x-ray of 
the Veteran's right foot was interpreted as showing a mild 
valgus deformity at the first MTP (metatarsalphalangeal) 
joint.  There was mild degenerative change at the first MTP 
joint with subchondral sclerosis.  The rest of the foot was 
normal.  An x-ray of the Veteran's left foot was reported to 
be normal.      

By a June 2002 rating action, the RO increased the disability 
rating for the Veteran's service-connected bilateral flat 
feet with valgus deformity of the ankles from 10 percent to 
30 percent disabling under Diagnostic Code 5276, effective 
from November 2, 2001.   The Veteran appealed this decision, 
and in her VA Form 9 dated in June 2004, she listed that she 
was appealing the rating in excess of 30 percent for the 
bilateral flat feet with valgus deformity of the ankles.  

On August 25, 2005, the Veteran testified at a Travel Board 
hearing before the undersigned Veterans Law Judge.  At that 
time, she identified the issue as a rating in excess of 30 
percent for her service-connected pes planus.  As such, the 
Board has addressed the issue consistently as such throughout 
this decision.  The Veteran stated that due to her bilateral 
pes planus, she had to wear arch supports everyday.  The 
Veteran noted that at times, her feet and ankles would just 
give out and she would fall.  According to the Veteran, on 
one occasion, her supervisor had to take her to the emergency 
room after she had fallen at work.  The Veteran reported that 
when she awoke in the morning, her ankles were swollen and 
she could not put her shoes on.  She noted that due to the 
swelling, it was painful to walk.  The Veteran maintained 
that the problems that she experienced because of her flat 
feet had caused her to miss work.  According to the Veteran, 
at a recent podiatry appointment, she was told that her feet 
were getting worse and that she was not improving.  She 
stated that she was given new arch supports because her feet 
were going into the floor.  

A VA examination was conducted in February 2008.  At that 
time, the examiner stated that he had reviewed the Veteran's 
claims file.  The Veteran stated that she had chronic pain in 
her feet which averaged 8 to 9 on a scale of 10.  She denied 
flare-ups and noted that she took Prednisone for pain.  The 
Veteran wore a double upright brace with a medial T-strap 
which provided her significant pain relief.  When the Veteran 
wore her braces, she had no pain in her feet (0 on a scale of 
10) for the first hour of walking.  After that, however, her 
pain level increased to an 8 or 9 on a scale of 10.  If she 
did not wear her braces, she had a pain level of an 8 or 9 on 
a scale of 10 from the beginning of walking.  The Veteran 
denied any numbness or tingling.  Her pain was in the medial 
side of her arch, as well as her ankle.  She had a little bit 
of pain in the anterolateral ankle as well.  The Veteran did 
not do any walking without her braces; as long as she was 
wearing her braces, it did not affect her activities of daily 
living.  If she was not wearing her braces, she was unable to 
do any sort of walking or prolonged standing.  At present, 
she was not working and was receiving disability benefits.        

Upon physical examination, in regard to range of motion for 
both ankles/feet, dorsiflexion was to 10 degrees and plantar 
flexion was to 40 degrees.  There was pain throughout those 
arcs of motion, both actively and passively.  The pain was 
not worse, nor was the motion decreased with repetitions (3 
repetitions).  There was intact sensation to light touch in 
the foot.  There was tenderness to palpation in the medial 
arc, as well as the medial aspect of the ankle.  The Veteran 
had 5/5 strength in all muscle groups except that she had 4/5 
strength in the posterior tibial tendon.  She could not 
single leg heel rise; however, she could double limb heel 
rise with fairly good inversion.  The Veteran had bilateral 
planovalgus deformity of the foot with 10 degrees valgus 
ankle of the calcaneus.  Thus, she had pain with her gait.  
She also had an antalgic gait without her braces.  There was 
pain on manipulation of the flatfoot deformity.  There was no 
evidence of callous or abnormal weight bearing.  X-rays of 
the left foot/ankle shows mild tibiotalar arthritis, as well 
as pes planus deformity.  The assessment was of bilateral 
posterior tibial tendon insufficiency with calcaneal valgus 
foot.  The examiner stated that the Veteran had a severe 
deformity.  According to the examiner, the Veteran would 
continue to use her double upright braces and did function 
fairly well with them.  The Veteran had marked pes planus 
with severe pronation deformity and significant pain.  
According to the examiner, that was unlikely the source of 
ankle sprains but was a significant source of disability as 
described in the examination above.  The examiner stated that 
there was pain on range of motion and it was conceivable that 
the pain could further limit function as described, 
particularly after being on her feet all day.  However, the 
examiner indicated that it was not feasible to attempt to 
express any of that in terms of additional limitation of 
motion as those matters could not be determined with any 
degree of medical certainty.           

In a statement from the Veteran, dated in August 2008, she 
noted that she received a pedicure twice a month to remove 
callouses and corns from the bottom of her feet.  She also 
noted that even though she had been wearing inserts in her 
shoes for the last 20 years, and that she wore orthopedic 
shoes and lateral braces, nothing had improved her feet.  
According to the Veteran, her life had been limited due to 
the amount of time that she could be on her feet.  She 
indicated that her feet were flat on the floor and her ankles 
were "right behind them."     


B.  Analysis

Disability ratings are determined by the application of VA's 
SCHEDULE FOR RATING DISABILITIES (Rating Schedule) codified 
in 38 C.F.R. Part 4 (2009), which is based on the average 
impairment of earning capacity.  Separate diagnostic codes 
identify the various disabilities.  38 U.S.C.A. § 1155; 38 
C.F.R. Part 4 (2009). Pertinent regulations do not require 
that all cases show all findings specified by the Rating 
Schedule, but that findings sufficient to identify the 
disease and the resulting disability and above all, 
coordination of the rating with the impairment of function 
will be expected in all cases.  38 C.F.R. § 4.21 (2009).

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).

Where entitlement to compensation has already been 
established and an increase in the severity of the disability 
is at issue, as in this case, "the relevant temporal focus . 
. . is on the evidence concerning the state of the disability 
from the time period one year before the claim was filed 
until VA makes a final decision on the claim."   Hart v. 
Mayfield, 21 Vet. App. 505, 509-10 (2007); see also Francisco 
v. Brown, 7 Vet. App. 55, 58 (1994).  In this regard, the 
Court has recognized that "staged ratings are appropriate 
for an increased-rating claim when the factual findings show 
distinct time periods where the service- connected disability 
exhibits symptoms what would warrant different ratings."  
Hart, supra, at 509.

The Veteran's service-connected bilateral pes planus with 
valgus deformity of the ankles has been evaluated as 30 
percent disabling under Diagnostic Code 5276.  38 C.F.R. 
§ 4.71a, Diagnostic Code 5276 (2009).  Under Diagnostic Code 
5276, a 30 percent rating is warranted for severe bilateral 
pes planus, with objective evidence of marked deformity 
(pronation, abduction, etc.), pain on manipulation and use 
accentuated, an indication of swelling on use, and 
characteristic callosities.  A maximum 50 percent rating is 
warranted for pronounced bilateral pes planus, manifested by 
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.  38 C.F.R. § 4.71a, Diagnostic Code 
5276.      

The Veteran asserts that her bilateral pes planus is more 
severe than the current 30 percent disability rating 
reflects.  Specifically, she contends that her condition is 
marked by chronic pain and severe deformity, entitling her to 
a higher rating.  In this regard, lay statements are 
considered to be competent evidence when describing symptoms 
of a disease or disability or an event.  However, symptoms 
must be viewed in conjunction with the objective medical 
evidence of record.  Espiritu v. Derwinski, 2 Vet. App. 492 
(1992).   

In this case, the record reasonably establishes that a 
"staged" rating of 50 percent is warranted from the date of 
her sworn oral testimony at her hearing on August 25, 2005, 
to the present.  See Hart, supra.  Prior to that date, the 
Veteran's disability warrants no more than a 30 percent 
rating.

Upon a review of the evidence prior to August 25, 2005, the 
evidence did not show that the Veteran's bilateral pes planus 
condition was pronounced in degree (or more than severe).  In 
this regard, the Board recognizes that the Veteran stated 
that her bilateral flat feet were not improved by the 
orthopedic shoes and molded arch supports that she wore.  The 
Veteran is competent to provide evidence in this regard, and 
the Board finds no reason to doubt her credibility.  However, 
prior to August 25, 2005, there was no medical evidence 
showing that the Veteran had marked pronation, extreme 
tenderness of the plantar surfaces, marked inward 
displacement and severe spasm of the tendo Achilles on 
manipulation.  In the May 2002 VA examination report, 
although "significantly pronated" feet were noted, the 
Veteran's flat feet were characterized as grade I flat feet.  
In addition, upon examination of the Veteran's feet, there 
was no Achilles tendon spasm or displacement and there was no 
pain with manipulation, bilaterally.  Moreover, there was no 
plantar tenderness and the Veteran was able to heel and toe 
walk.  She was also able to squat and arise again.  The 
Veteran's valgus deformity of her right first MTP joint was 
characterized as "mild."  

The Board has considered functional loss due to flare-ups of 
pain, fatigability, incoordination, pain on movement, and 
weakness, in assessing the Veteran's bilateral pes planus 
condition during the period of time from November 2, 2001 to 
August 24, 2005.  See 38 C.F.R. §§ 4.40, 4.45 (2009); DeLuca 
v. Brown, 8 Vet. App. 202, 206-7 (1995).  While the Veteran 
experienced pain and some functional limitation with 
prolonged standing and walking during the aforementioned 
period of time, the Board determines that the 30 percent 
rating adequately accounted for those symptoms, as consistent 
with the medical findings of record.  Thus, an additional 
award based on DeLuca beyond the 30 percent evaluation for 
the period of time from November 2, 2001 to August 24, 2005, 
is not warranted.

On August 25, 2005, the Veteran testified under oath that her 
service-connected bilateral pes planus had increased in 
severity.  This claimed increase in severity was subsequently 
confirmed in a February 2008 VA examination.  At that time, 
there was pain upon range of motion of both ankles/feet.  In 
addition, there was pain on manipulation of the flatfoot 
deformity.  The Veteran also had bilateral planovalgus 
deformity of the foot with 10 degrees valgus ankle of the 
calcaneus.  Moreover, the examiner stated that the Veteran 
had marked pes planus with severe pronation deformity and 
significant pain.    

The Board recognizes that in the February 2008 VA examination 
report, the examiner stated that the Veteran wore double 
upright braces and functioned fairly well with them.  
According to the examiner, the braces provided the Veteran 
significant pain relief.  In this regard, the examiner noted 
that when the Veteran wore her braces, she had no pain in her 
feet for the first hour of walking.  However, the examiner 
then stated that after that, the Veteran's pain level 
increased to an 8 or 9 on a scale of 10.  In addition, the 
Board notes that in an August 2008 statement from the 
Veteran, she stated that even though she wore orthopedic 
shoes and lateral braces, nothing had improved her feet.  As 
stated above, the Veteran is competent to provide evidence in 
this regard, and the Board finds no reason to doubt her 
credibility.  Thus, the Board finds that the Veteran's pes 
planus condition has not been improved by the use of 
orthopedic shoes or appliances.      

In this case, the evidence of record does not show that the 
Veteran has had any spasm of the Achilles tendon on 
manipulation.  However, although the Veteran does not exhibit 
all of the findings for pronounced pes planus under 
Diagnostic Code 5276, the Board finds that in light of the 
above, the overall severity of the Veteran's bilateral pes 
planus with valgus deformity of the ankles since August 25, 
2005, is pronounced and more closely approximates the 
criteria for a 50 percent evaluation.  The Board recognizes 
that the Veteran's pes planus condition was not shown to be 
pronounced in degree until the February 2008 VA examination.  
However, given that the Veteran testified at the Travel Board 
hearing, which was conducted on August 25, 2005, that her pes 
planus condition had increased in severity, and that the 
subsequent February 2008 VA examination confirmed that the 
Veteran's pes planus condition had increased from severe to 
pronounced in degree, the Board finds that the effective date 
of the Veteran's increase in her pes planus condition is 
August 25, 2005.  Accordingly, the benefit of the doubt is 
resolved in favor of the Veteran by finding that as of August 
25, 2005, the Veteran is entitled to an increased rating of 
50 percent for her bilateral pes planus with valgus deformity 
of the ankles.   

With regard to whether the Veteran has been entitled to a 
rating higher than 50 percent since August 25, 2005, the 
Board finds that she has not.  A 50 percent disability rating 
is the maximum disability rating available under Diagnostic 
Code 5276.  No other diagnostic code pertaining to the feet 
provides for a higher disability rating.  38 C.F.R. § 4.71a, 
Diagnostic Codes 5277 to 5284 (2009).  While the Veteran may 
be entitled to a higher rating if her pes planus disability 
is determined to amount to loss of use of the feet as a 
result of amputation, the Board finds that such criteria have 
not been met in this case, as the Veteran adequately 
ambulates.  38 C.F.R. § 4.71a, Diagnostic Code 5167.

The Board has additionally considered all applicable 
statutory and regulatory provisions to include 38 C.F.R. §§ 
4.40 and 4.59 as well as the holding in DeLuca, supra, 
regarding functional impairment attributable to pain, 
particularly in light of the fact that the Veteran contends 
her disability is essentially manifested by pain. However, as 
the Veteran is already in receipt of the maximum rating 
available and pain is a factor that has been considered in 
granting that award, the Board finds that a higher rating 
based on pain and functional impairment is not possible.  See 
Johnston v. Brown, 10 Vet. App. 80 (1997)(where a Veteran is 
in receipt of the maximum rating for limitation of motion of 
a joint, the provisions of 38 C.F.R. 
§§ 4.40, 4.45, 4.59 and DeLuca v. Brown do not apply). 

In view of the foregoing, the Board finds that the 
preponderance of the evidence is against the claim for a 
rating in excess of 30 percent for the Veteran's service- 
connected bilateral pes planus with valgus deformity of the 
ankles, prior to August 24, 2005.  As the preponderance of 
the evidence is against this aspect of the claim, the benefit 
of the doubt doctrine does not apply and the claim for a 
rating in excess of 30 percent for bilateral pes planus with 
valgus deformity of the ankles, from November 2, 2001 to 
August 24, 2005, must be denied.  38 U.S.C.A. § 5107(b); 
Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) 
(holding that "the benefit of the doubt rule is inapplicable 
when the preponderance of the evidence is found to be against 
the claimant"); Gilbert v. Derwinski, 1 Vet. App 49, 55- 57 
(1990).  However, the criteria for a 50 percent rating, but 
no more than 50 percent, are met from August 25, 2005.  Thus, 
an increased rating to 50 percent under Diagnostic Code 5276, 
effective from August 25, 2005, is warranted.


IV.  Extraschedular Rating

In general, the schedular disability evaluations are 
determined by the application of a schedule of ratings which 
is based on average impairment of earning capacity.  38 
U.S.C.A. § 1155; 38 C.F.R. Part 4.  The application of such 
schedular criteria was discussed in great detail above.  To 
accord justice in an exceptional case where the schedular 
standards are found to be inadequate, the RO 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).

The criterion for such an award is a finding that the case 
presents an exceptional or unusual disability picture with 
such related factors as marked interference with employment 
or frequent periods of hospitalization as to render 
impractical application of regular schedular standards.  Id.  
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; however, the Board is 
not 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 Thun v. Peake, 22 Vet. App. 111 (2008), the Court 
clarified the analytical steps necessary to determine whether 
referral for extraschedular consideration is warranted. 
Either the RO or the Board must first determine whether the 
schedular rating criteria reasonably describe a veteran's 
disability level and symptomatology.  Id. at 115.  If the 
schedular rating criteria do reasonably describe a veteran's 
disability level and symptomatology, the assigned schedular 
evaluation is adequate, referral for extraschedular 
consideration is not required, and the analysis stops.

If the RO or the Board finds that the schedular evaluation 
does not contemplate a veteran's level of disability and 
symptomatology, then either the RO or the Board must 
determine whether a 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.

In this case, the Board recognizes that the Veteran has 
reported clear problems with employment due to multiple 
disabilities, including those for which an increased 
schedular rating was claimed.  However, the Board otherwise 
finds that the symptoms described by the Veteran and those 
shown in the medical reports generally fit squarely within 
the criteria found in the relevant Diagnostic Codes for the 
disability at issue.  In short, the rating criteria 
contemplate not only the symptoms but the severity of this 
disability.  For these reasons, referral for extraschedular 
consideration is not warranted.


ORDER

Entitlement to service connection for hypertension, to 
include as secondary to service-connected bilateral pes 
planus with valgus deformity of the ankles, discoid lupus 
erythematosis, and chronic right ankle sprain, is denied.      

Entitlement to a rating in excess of 30 percent for bilateral 
pes planus with valgus deformity of the ankles, prior to 
August 24, 2005, is denied.

Entitlement to a rating of 50 percent for bilateral pes 
planus with valgus deformity of the ankles, but no more than 
50 percent, from August 25, 2005, is granted, subject to the 
regulations governing the payment of monetary benefits.


REMAND

In January 2006, the Board remanded the Veteran's claim for 
an increased rating for her service-connected discoid lupus 
erythematosus.  In this regard, the RO was directed to 
schedule the Veteran for an examination to determine the 
nature and severity of all symptoms of the Veteran's lupus.  
Upon examination, the examiner was requested to state what, 
if any, functional impairment was caused by each symptom 
identified of the Veteran's lupus and by the totality of 
symptoms.  The examiner was specifically requested to comment 
on whether the lupus had frequent exacerbations, producing 
severe impairment of health.   

Pursuant to the January 2006 remand, the Veteran underwent a 
VA examination in February 2008.  A review of the February 
2008 VA examination report shows that although the examiner 
discussed the Veteran's lupus symptomatology, he did not 
address the pertinent question of whether the Veteran's lupus 
had frequent exacerbations, producing severe impairment of 
health.  Accordingly, it is the Board's determination that 
the RO has not complied with the instructions from the 
January 2006 remand.  The Board observes that it is obligated 
by law to ensure that the RO complies with its directives, as 
well as those of the Court.  The Court has stated that 
compliance by the Board and the RO with remand directives is 
neither optional nor discretionary.  Where the remand of the 
Board or the Court is not complied with, the Board errs as a 
matter of law when it fails to ensure compliance.  Stegall v. 
West, 11 Vet. App. 268 (1998).    

The Board also notes that in the February 2008 VA examination 
report, the Veteran stated that she was not working and was 
receiving disability benefits from the Social Security 
Administration (SSA).  As the RO has not yet attempted to 
obtain the SSA disability determination and the underlying 
medical records, the Board finds that the RO must seek to 
obtain these records upon remand.  See 38 U.S.C.A. § 5103A 
(West 2002); 38 C.F.R. § 3.159(c) (2009); see also Tetro v. 
Gober, 14 Vet. App. 100, 110 (2000) (holding that VA has a 
duty to request information and pertinent records from other 
Federal agencies, when on notice that such information 
exists).

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held 
that a TDIU claim is part of an increased rating claim when 
such claim is raised by the record.  In this case, the Board 
finds the fact that the Veteran is not currently working and 
is receiving SSA benefits, raises the issue of 
unemployability.  However, such claim has not been developed 
nor considered by the RO in the first instance.  Therefore, 
the Board remands the issue of entitlement to TDIU to the RO 
for development and adjudication.

Accordingly, the case is REMANDED for the following action:

1.  Issue a VCAA notice letter for the 
TDIU issue in accordance with 38 U.S.C.A. 
§§ 5102, 5103, and 5103A (West 2002), 38 
C.F.R. § 3.159 (2009), and applicable 
legal precedent.  Take all necessary 
action to develop and adjudicate such 
claim, as appropriate.  

2.  Contact the SSA and obtain a copy of 
any decision(s) regarding the Veteran's 
claim for disability benefits, as well as 
any medical records in its possession.

3.  Thereafter, schedule the Veteran for 
an examination to determine the nature and 
severity of all symptoms of lupus.  If 
separate specialties are required to 
evaluate all symptoms, schedule the 
Veteran for each examination necessary.  
The examiner(s) should review the 
Veteran's claims folder, specifically the 
February 2008 VA examination report, 
perform all necessary clinical testing, 
and state with specificity each and every 
symptom related to the diagnosis of lupus.  
The examiner(s) should state whether the 
Veteran's complaints of iritis and joint 
pain are due to lupus; they should also 
address the Veteran's complaints of 
fatigue.  The examiner(s) should state 
what, if any, functional impairment is 
caused by each symptom identified and by 
the totality of symptoms.  The examiner 
should specifically comment on whether the 
lupus has frequent exacerbations, 
producing severe impairment of health.  
All opinions expressed must be supported 
by complete rationale.

4.  After undertaking any other 
development deemed appropriate, re- 
adjudicate the remaining issue on appeal. 
If any benefit sought on appeal is not 
granted, furnish the Veteran and her 
representative with a supplemental 
statement of the case (SSOC) and afford 
them an opportunity to respond before the 
record is returned to the Board for 
further review.    

The Veteran has the right to submit additional evidence and 
argument on the matter or 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).




______________________________________________
M. SABULSKY
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs