Citation Nr: 1035170 Decision Date: 09/17/10 Archive Date: 09/21/10 DOCKET NO. 08-32 308 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to an evaluation in excess of 10 percent for service- connected bilateral pes planus. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from August 1987 to August 1995. This matter comes to the Board of Veterans' Appeals from a January 2008 rating decision by which the RO denied the Veteran's claim. In connection with this appeal, the Veteran requested a personal hearing before a Veterans Law Judge at the RO. She withdrew her hearing request in February 2009. See 38 C.F.R. § 20.704(e) (2009). Accordingly, the Board will proceed with consideration of the Veteran's claim based on the evidence of record, as she has requested. FINDING OF FACT The Veteran's service-connected bilateral pes planus is manifested by no more than a severe disability picture with pain and swelling of the feet. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation of 30 percent, but no higher, for the Veteran's service-connected bilateral pes planus have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5276 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA duty to notify was satisfied by way of a letter sent to the Veteran in November 2007 that fully addressed all three notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Notice consistent with the Court's holding in Dingess was provided in November 2007. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service treatment records and VA clinical records. The Veteran submitted employment information. The Veteran was afforded two VA medical examinations in furtherance of her claim. Significantly, neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Discussion Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a total rating based on individual unemployability (TDIU) claim is part of an increased rating claim when such claim is reasonably raised by the record. The Veteran's service-connected bilateral pes planus has been rated 10 percent disabling by the RO under the provisions of Diagnostic Code 5276. She submitted her claim for an increased rating in October 2007. Specific schedular criteria: Bilateral pes planus will be rated as noncompensable when it is mild, with symptoms relieved by built-up shoe or arch support. A moderate disability, with weight-bearing over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, will be rated 10 percent disabling. A severe disability, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, will be rated 30 percent disabling where bilateral. A pronounced disability (with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances) will be rated 50 percent disabling where bilateral. See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2009). The words "moderate," "severe," "pronounced" and "marked" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6 (2009). The Board observes in passing that "moderate" is defined as "of average or medium quality, amount, scope, range, etc." Webster's New World Dictionary, Third College Edition (1988) 871. "Marked" is defined as "noticeable; obvious; appreciable; distinct; conspicuous." Id. at 828. The record reflects that the Veteran has been seeking VA medical treatment for bilateral foot symptomatology. In February 2007, she complained that walking as part of her supervisory duties aggravated foot pain and that walking up and down stairs at home also exacerbated foot pain. Reportedly, she used orthotics in her shoes and underwent physical therapy and steroid injections in her heels approximately six months earlier when a podiatrist diagnosed bilateral plantar fasciitis and pes planus. The diagnosis was of chronic foot pain. In October 2007, bilateral plantar fasciitis was diagnosed, and the Veteran was referred to podiatry. Later that month, the Veteran saw a podiatrist. Her chief complaint was of bilateral heel pain. She indicated that she worked for the United States Postal Service and experienced daily pain. She indicated that she had tried injections, arch supports, and elevating the heels to no avail. On objective examination, there were no neurological problems associated with the feet. However, bilateral plantar fasciitis was present in both heels. The Veteran was shown exercises and instructed on proper footwear. In December 2007, the Veteran was afforded a VA foot examination. On examination, the Veteran described foot pain that was a six on a scale of one to ten upon standing and walking. The pain increased to an eight or nine as the day progressed. The Veteran indicated that she worked as a postal clerk and had to stand all day. Apparently, she was allowed to sit for 15 minutes every two hours. Objectively, there was no instability, swelling, tenderness, or redness, but there was some lack of endurance. Weight bearing was normal. The Veteran used over-the-counter analgesics as needed. The Veteran endured pain at work. While at home, she avoided standing and prolonged ambulation. There was normal mobility of the great toes. There was right hallux valgus at a 20 degree angle and left hallux valgus at a 15 degree angle. As to missed work, the Veteran indicated that she lost two to three days twice a month due to multiple medical conditions and not just her feet. An X-ray study of the feet reflected mild bilateral hallux valgus deformities and no other significant abnormalities. The diagnosis was of bilateral pes planus aggravated by weight gain. On February 2010 VA examination of the feet, the Veteran complained of progressively worsening bilateral foot pain. She denied trauma as well as hospitalizations or surgeries of the feet. The Veteran's symptoms included fatigability, stiffness, lack of endurance, and pain on standing. She experienced heat, fatigability, redness, lack of endurance, and swelling while walking. She indicated that she fell a lot. The Veteran reported weekly flare-ups that were precipitated by eight hours of standing at work. During flare-ups, the Veteran stayed in bed. The Veteran reportedly used orthotics and corrective shoes. On objective examination, the examiner observed no painful motion, swelling, weakness, or abnormal weight bearing. There was heel and plantar surface tenderness. Arches were present on weight bearing and non weight bearing. Gait was normal. The examiner indicated that bilateral foot X-ray studies were normal. The examiner diagnosed pes planus that caused bilateral foot pain and "significant" effects on occupational performance due to decreased mobility, pain, difficulty standing, and difficulty walking. On examination, the Veteran noted that she worked as a postal clerk on a full-time basis and that she had missed five weeks of work during the previous 12 months. A review of VA medical records reflects that the Veteran requested that paperwork be completed so that she could take leave from work under the Family & Medical Leave Act (FMLA) for multiple medical conditions including plantar fasciitis. Leave under FMLA for possible two monthly episodes each lasting from one to two days was approved in February 2007. The Veteran submitted a December 2007 letter from a superior indicating that the Veteran had excessive absences in 2006 and 2007 due to problems with her feet, and supporting documentation was enclosed. A review of the Veteran's symptomatology indicates that a 30 percent evaluation is warranted for her service connection bilateral pes planus because she has reported swelling and because her symptomatology has included incoordination, pain, and fatigability. The Board also notes that although the Veteran is employed, her bilateral pes planus has had at least some impact on her job performance, which has included significant absenteeism. Id. Because the Veteran's symptomatology has been fairly consistent during the appellate period, the Board is of the view that the 30 percent evaluation is warranted for the entire period. Hart, supra. The Board notes that no VA examiner noted swelling of the feet, but VA examinations and treatment take place on isolated occasions, and the Veteran is aware of her symptomatology as it occurs. The Board finds no reason to question the Veteran's assertions regarding swelling of the feet. A 50 percent evaluation is not for application herein because symptoms such as marked pronation and severe spasm of the tendo achillis on manipulation are not shown. The Board recognizes that the Veteran suffers from tenderness of the feet, but such tenderness has not been characterized as extreme. Indeed, the Veteran is generally able to perform her employment duties, which are noted to include hours of standing. The Veteran has reviewed the rating schedule but has found no provision more applicable to the Veteran's service-connected bilateral pes planus than Diagnostic Code 5276. The Board is well aware of the Veteran's bilateral hallux valgus and plantar fasciitis, but these conditions are not service connected. As such, the Board need not consider schedular provisions related to them. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 (2009) allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 (2009) provides that consideration also be given to weakened movement, excess fatigability and incoordination. No further compensation is warranted under the foregoing provisions because the manifestations outlined are either not present or have already been considered in the assignment of the 30 percent disability rating herein. The Board finds that a claim for a TDIU is not raised by the record. Specifically, the evidence of record shows that the Veteran is employed. Therefore, the Board finds that no further consideration of a TDIU is warranted. Rice, supra. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2009). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. In this case, an extraschedular rating need not be considered. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected bilateral pes planus is inadequate. A comparison between the level of severity and symptomatology of the Veteran's bilateral pes planus with the established criteria found in the rating schedule for flat feet shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. For this reason, the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate. The Board thus has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER A 30 percent evaluation for the Veteran's service-connected bilateral pes planus is granted subject to the law and regulations applicable to the payment of veterans' benefits. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs