Citation Nr: 1033166 Decision Date: 09/02/10 Archive Date: 09/13/10 DOCKET NO. 04-27 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an increased disability rating for bilateral pes planus, currently evaluated as 30 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1951 to May 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2004, the Veteran testified at a hearing before a Decision Review Officer at the RO. A transcript of this hearing is associated with the claims file. In March 2007, the Board remanded the current issue for further evidentiary development, and also denied entitlement to service connection for a bilateral knee disability and for a bilateral hip disability. Because a final Board decision was rendered with regard to the knee and hip disabilities, those two claims are no longer a part of the current appeal. In March 2009, the Board again remanded the current issue for further evidentiary development. The requested development was completed, and the remand orders were substantially complied with. The case has now been returned to the Board for further appellate action. Also in March 2009, for the Board decided the issue of entitlement to an increased disability rating for low back sprain. Because a final Board decision was rendered with regard to the low back disability, that claim is no longer a part of the current appeal. Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The competent evidence of record reflects that the Veteran's bilateral pes planus is considered no more than severely disabling, such disability has not been productive of marked inward displacement or severe spasm of the tendo achillis on manipulation, and there has been some improvement of his symptoms by orthopedic appliances. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in August 2003, April 2007, September 2008, and May 2009 letters, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate his claim for an increased rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The April 2007, September 2008, and May 2009 letters advised the Veteran to submit evidence showing his disability had worsened, to include records from medical providers, statements from others who could describe their observations of his disability level, and his own statements describing the symptoms, frequency, severity and additional disablement caused by his disability. These letters also informed the Veteran of the necessity of providing medical or lay evidence demonstrating the level of disability and the effect that the symptoms have on his employment, and provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to increased compensation. See Vazquez- Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increase need not be veteran specific). In addition, these letters explained how VA determines effective dates and the types of evidence which impact such determination. The case was last adjudicated in April 2010. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include service treatment records, VA treatment records, VA examination reports, and hearing testimony. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing argument and responding to notices. Moreover, he described his symptomatology and its impact on his functioning to VA examiners. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2009); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2009); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2009); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2009). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found - a practice known as "staged" ratings. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2009); see also 38 C.F.R. §§ 4.45, 4.59 (2009). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection for bilateral pes planus has been in effect since May 1955. The Veteran filed his current claim for an increased rating in July 2003. In the February 2004 rating decision on appeal, the RO continued the 30 percent rating for bilateral pes planus under 38 C.F.R. § 4.71a, Diagnostic Code 5276. Under Diagnostic Code 5276, a 30 percent evaluation is warranted for severe bilateral acquired flatfoot manifested by marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet, and characteristic callosities. A 50 percent evaluation is warranted for pronounced bilateral acquired flatfoot manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation which is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2009). Turning to the evidence, the Veteran underwent a VA orthopedic examination in September 2003. On that occasion, it was noted that VA X-rays of his feet taken in July 2003 had revealed third- degree flat feet bilaterally as well as degenerative arthritis of the great toe of both feet. Physical examination of his feet revealed third-degree flat foot of both feet with slight rigidity of his great toes bilaterally. He was diagnosed with third- degree flat feet (noted to be diagnosed in service), with recent treatment with orthotic appliances for his shoes. In a January 2004 VA treatment record, the Veteran denied any pain or discomfort in his feet, and it was noted that his orthotics controlled excessive pronation and provided adequate support. In an August 2004 VA treatment record, it was again noted that his orthotics controlled excessive pronation and provided adequate support. In a November 2004 statement and at his November 2004 hearing, the Veteran noted that he got some relief of his foot pain for a period of time with a combination of orthotic arch supports and pain medication. In a December 2004 VA treatment record, it was noted that his arch supports gave him some relief and that he had developed a very sensitive instep, arches, and heel. He was diagnosed with severe bilateral pes planus, symptomatic and semi-rigid, with pain on palpation of the plantar fascia from the medial calcaneal tubercle to the metatarsophalangeal joints bilaterally. One day later in December 2004, he complained of some pain even with inner soles, but it was noted that medication helped. At a VA orthopedic examination in December 2004, it was noted that the Veteran's gait was symmetric, but his feet were not examined on that occasion. In a June 2005 VA treatment record, he complained of some pain in his feet, and it was noted that he used arch supports and that medication helped. In an August 2006 VA treatment record, it was noted that he walked one mile per day. The Veteran underwent another VA orthopedic examination in August 2008. On that occasion, he reported that for the past twelve years, he had had instep tenderness. He also described feeling as if his Achilles tendon was going to give way (on the left side more than the right side), but it had never done so. The Veteran denied any specific weakness or swelling in his feet, but he described stiffness in his feet and posterior calves (particularly at night). It was noted that his feet had never locked in one position. The Veteran noted that cold, damp weather tended to make his feet hurt worse. At present, he was taking pain medication and also wore inserts in his shoes. It was noted that he felt those inserts were helpful, particularly if he could put them in and take them out as he felt necessary. It was also noted that his gait was symmetric. Physical examination of the Veteran's feet revealed that both feet, unloaded, were still in a pronated position and remained flat, although his forefeet seemed to return closer to a normal position. The midfoot and forefoot joints were supple, but tended to lie in pronation and abduction with relation to the hind feet. In stance, the medial arches were flat on the floor and the forefeet were splayed outwards. All ranges of motion of the feet were repeated several times with no change in the range of motion, but with increased discomfort with each repetition. It was noted that VA X-rays of the Veteran's feet taken in August 2008 had revealed degenerative joint disease throughout, most particularly in the first metatarsophalangeal joints bilaterally. It was noted that such findings confirmed the diagnosis of third- degree flat feet with osteoarthritis. In a December 2008 VA treatment record, it was noted that the Veteran had a rather significant flatfoot deformity bilaterally, with medial column collapse noted on the right slightly moreso than on the left. In stance without orthotics, he functioned maximally pronated with rearfoot eversion. However, it was noted that he was asymptomatic to palpation of the heel cord and was able to go to the balls of his feet without symptoms, with little rearfoot inversion. It was also noted that his current orthotics appeared to hold him in fairly good position. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran's bilateral pes planus is adequately evaluated as 30 percent disabling, as the evidence shows that it is no more than severely disabling. In this regard, the objective medical evidence of record does not show that the Veteran's bilateral pes planus has been productive of marked inward displacement or severe spasm of the tendo achillis on manipulation. While the Veteran has reported pain and stiffness in his feet, he has repeatedly acknowledged that his symptoms have been improved by orthopedic appliances as well as pain medication. Thus, the Board finds that the preponderance of the evidence reflects no more than severe impairment bilaterally. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2009). Even considering the Veteran's subjective complaints of pain, the medical evidence of record does not show any additional limitation of motion or functional impairment that would support an evaluation in excess of the 30 percent presently assigned. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2009); see also 38 C.F.R. §§ 4.45, 4.59 (2009). In summary, based upon the competent medical evidence of record, the Board concludes that the Veteran's bilateral pes planus has been adequately addressed by the 30 percent evaluation already assigned, as the appropriate characterization for rating purposes of the Veteran's bilateral pes planus has been shown to be severe (rather than pronounced). See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2009). Therefore, the Board finds that the preponderance of the evidence is against the claim for a disability rating in excess of 30 percent at any time. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether the Veteran's bilateral pes planus disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2009); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to a disability rating in excess of 30 percent for bilateral pes planus is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs