Citation Nr: 1035601	
Decision Date: 09/20/10    Archive Date: 09/28/10

DOCKET NO.  03-29 403	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada



THE ISSUE

Entitlement to increases in the ratings for bilateral pes planus, 
currently assigned staged ratings of 0 percent prior to January 
14, 2008 and 10 percent from that date.  



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

Jarrette A. Marley, Associate Counsel



INTRODUCTION

The appellant is a Veteran who served on active duty from June 
1960 to May 1980.  These matters are before the Board of 
Veterans' Appeals (Board) on appeal from a June 2002 rating 
decision by the San Diego, California Department of Veterans 
Affairs (VA) Regional Office (RO) that, in pertinent part, 
granted service connection for bilateral pes planus, rated 0 
percent, effective September 25, 1998.  An interim June 2008 
rating decision increased the rating to 10 percent, effective 
January 14, 2008.  The Veteran's claims file is now in the 
jurisdiction of the Reno, Nevada RO.  The case was previously 
before the Board in April 2006 and in January 2009, when it was 
remanded for further development of the evidence.  


FINDING OF FACT

Throughout since September 25, 1998, the Veteran's bilateral pes 
planus is reasonably shown to have been manifested by X-ray 
confirmed arthritis (with painful motion), in each foot; at no 
time during the appeal period is pes planus shown to have been 
severe; compensable(under limitation of motion Codes) limitations 
of motion are not shown.  


CONCLUSION OF LAW

The Veteran's bilateral pes planus warrants a 10 percent rating 
for each foot (and a combined 20 percent rating) throughout from 
September 25, 1998; a rating in excess of 20 percent is not 
warranted.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 
38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 
(Codes) 5003, 5010, 5276 (2009).  





REASONS AND BASES FOR FINDING AND CONCLUSION

A.	Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist 
claimants in substantiating a claim for VA benefits.  See 38 
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the 
instant claim.  Upon receipt of a complete or substantially 
complete application for benefits, VA is required to notify the 
claimant 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 VCAA notice must inform the claimant of 
any information and evidence not of record (1) that is necessary 
to substantiate the claim; (2) that VA will seek to provide; (3) 
that the claimant is expected to provide.  38 C.F.R. § 
3.159(b)(1) (including as revised effective May 30, 2008; 73 Fed. 
Reg. 23353 (April 30, 2008)).  VCAA notice should be provided to 
a claimant before the initial unfavorable agency of original 
jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006).  

As the rating decision on appeal granted service connection and 
assigned a disability rating and effective date for the award, 
statutory notice had served its purpose, and its application was 
no longer required.  See Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. 
Cir. 2007).  A September 2003 statement of the case (SOC) 
provided notice on the "downstream" issue of entitlement to an 
increased initial rating, and July 2004, March 2008, and May 2010 
supplemental SOCs (SSOCs) readjudicated the matters after the 
Veteran and his representative had the opportunity to respond and 
further development was completed.  38 U.S.C.A. § 7105; see 
Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006).  The Veteran 
has had ample opportunity to respond/supplement the record.  He 
has not alleged that notice in this case was less than adequate.  
See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("Where a 
claim has been substantiated after the enactment of the VCAA, the 
appellant bears the burden of demonstrating any prejudice from 
defective VCAA notice with respect to the downstream issues").  
The Veteran's pertinent treatment records, including records from 
the Social Security Administration (SSA), have been secured.  The 
RO arranged for VA examinations in September 2003 and January 
2008.  The examinations are adequate as they considered the 
evidence of record and reported history of the Veteran, were 
based on an examination of the Veteran, noted pertinent history 
and all physical findings necessary for a proper determination in 
these matters.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) 
(VA must provide an examination that is adequate for rating 
purposes).  The Veteran has not identified any pertinent evidence 
that remains outstanding.  VA's duty to assist is met.  
Accordingly, the Board will address the merits of the claim.  

B.	Factual Background

August 1997 right foot X-rays revealed a 2mm posterior calcaneal 
spur and osteopenia (i.e., reduced bone mass).  A September 1997 
private treatment record notes the Veteran's complaints of right 
foot pain.  

In his September 25, 1998 Substantive Appeal (for his claim 
seeking service connection for residuals of a right foot injury), 
the Veteran indicated that he was issued shoe supports during his 
active service and that he continues to wear them.  

On September 2003 VA examination, the Veteran related that he had 
bilateral flatfoot diagnosed in service and was given inserts.  
He stated that he still wears the inserts, and he complained of 
pain when he walks.  He stated that he could not walk more than 
50 feet and that he felt some stiffness.  He denied any treatment 
(e.g., crutches, brace, cane, or corrective shoes) for his feet 
other than the foot inserts.  On physical examination, there was 
no evidence of any swelling, heat, redness, or fatigability, and 
no symptoms at rest or on standing or walking.  The examiner 
noted that there was no painful motion elicited during the 
examination.  There was no evidence any edema, instability, 
weakness or tenderness.  There was no evidence of callosities, 
breakdown on the skin, or abnormal shoe wear.  The Veteran was 
able to do standing, squatting, supination, and pronation, rising 
on his toes and heels.  There was no evidence of hammer toes or 
hallux valgus.  The examiner found normal alignment of the 
Achilles tendon.  X-rays revealed mild pes planus bilaterally, 
small spurs on the heels, and mild arthritis.  The diagnosis was 
acquired bilateral pes planus with mild to moderate discomfort.  

July 2006 private treatment records from M. E. R., DPM note the 
Veteran's complaints of moderate foot pain and tenderness.  They 
also note the Veteran was previously treated for gait problems, 
heel pain, ankle pain, and flat feet.  It was noted that he 
ambulates well without assistance.  Physical examination revealed 
bilateral pes planus, as well as hammer toe on the right fourth 
toe, and mallet toe was found on the left third and fourth toes 
and on the right third toe.  

On January 2008 VA examination, the Veteran complained of diffuse 
bilateral foot pain on ambulating with stiffness, especially in 
the morning.  He reported that at rest and without weightbearing 
or motion, he had no pain or discomfort of the foot or toe.  When 
standing and walking, he developed moderate to occasional severe 
discomfort.  It was noted that he uses a cane for ambulation all 
of the time.  He reported he can stand for approximately 15 
minutes, and then needs to sit down due to increasing pain and 
discomfort.  He can walk 200 feet but less than a quarter of a 
mile with his cane on flat and level land, but he cannot walk up 
and down uneven terrain, and totally avoids steps, stairs, and 
ladders.  

On physical examination, the Veteran walked with a limp in a 
guarded manner.  He had difficulty with toe-and-heel gait, 
complaining of increasing pain and discomfort, especially with 
toe gait.  He was able to squat almost halfway with complaint of 
bilateral knee pain and weakness.  Pressure over the anterior 
aspect of the midfoot causes pain and discomfort radiating into 
the hind and forefoot.  The Veteran has a flexible flat foot 
bilaterally that is painful in all planes with movement.  There 
were no calluses or skin breakdown, and there was no unusual shoe 
wear pattern.  The Veteran has mallet and hammertoes, fourth 
right toe, and second and third left toes.  X-rays and MRI 
studies revealed osteoarthritic changes in both feet.  The 
diagnoses included bilateral pes planus.  




C.	Legal Criteria and Analysis

In general, disability evaluations are determined by the 
application of a schedule of ratings, which is based on the 
average impairment of earning capacity caused by a given 
disability.  Separate diagnostic codes identify the various 
disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

Where the determination involves the initial rating assigned with 
a grant of service connection, consideration must be given to 
whether "staged" ratings are warranted.  Fenderson v. West, 12 
Vet. App. 119 (1999).  For the Veteran's pes planus, the RO has 
assigned staged ratings of 0 percent prior to January 14, 2008, 
and 10 percent from that date.  

When evaluating musculoskeletal disabilities, VA may, in addition 
to applying schedular criteria, consider granting a higher rating 
in cases in which functional loss due to limited or excess 
movement, pain, weakness, excess fatigability, or incoordination 
is demonstrated, and those factors are not contemplated in the 
relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; 
DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  

Where there is a question as to which of two evaluations shall be 
applied, the higher rating will be assigned if the disability 
picture more nearly approximates the criteria for that rating.  
Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

When there is an approximate balance of positive and negative 
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(b); 38 C.F.R. §§ 3.102, 4.3.  

Pes planus (flatfoot) is rated under Code 5276, which provides 
for a 10 percent rating, when moderate, whether unilateral or 
bilateral, with the weight-bearing line over or medial to the 
great toe, inward bowing of the tendo achillis, and pain on 
manipulation and use of the feet.  When bilateral pes planus is 
severe, with objective evidence of marked deformity (pronation, 
abduction, etc.), pain on manipulation and use accentuated, 
indication of swelling on use, and characteristic callosities, a 
30 percent rating is to be assigned.  When bilateral pes planus 
is pronounced, 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, a 50 percent rating is to be 
assigned.  38 C.F.R. § 4.71a.  

Because X-rays have shown degenerative changes in the feet 
(arthritis) which have been related to the pes planus, the 
Veteran's service connected foot disability may alternatively be 
rated under Codes 5003, 5010; 38 C.F.R. § 4.71a, which provide 
for a (maximum) rating of 10 percent for each major joint/group 
of minor joints with arthritis and painful (but less than 
compensably limited) motion.  Each foot is considered a group of 
minor joints.  [The Board has considered the applicability of 
other Codes; however, there is no evidence of weak foot (Code 
5277), pes cavus (Code 5278), Morton's disease (Code 5279), 
hallux rigidus (Code 5281), malunion or nonunion of the tarsal or 
metatarsal bones (Code 5283) or "other foot injury" (Code 
5284).  Consequently, rating the Veteran's pes planus under these 
Codes would be inappropriate.]  

The Board finds that rating under Codes 5003, 5010 is more 
advantageous to the Veteran, and that a higher (10 percent for 
each foot) rating is warranted for each foot from September 25, 
1998 (the effective date of the grant of service connection).  
Specifically, on September 2003 VA examination there was an X-ray 
confirmed diagnosis of mild arthritis with mild to moderate 
discomfort in each foot.  Notably, there are no earlier X-rays 
during the appeal period.  As the record shows the Veteran had 
foot pain even a year before the appeal period, it is reasonable 
to conclude that the arthritis of both feet was present and 
manifested by painful, but less than compensable limited motion 
of each foot, throughout the appeal period.  

The Board further finds that a higher (30 percent) rating under 
Code 5276 is not warranted for any period of time during the 
appeal period.  As was noted above, 10% is the maximum rating 
available for a group of minor joints under Code 5003.  July 2006 
private treatment records note moderate tenderness.  January 2008 
VA examination found bilateral pain in all planes of movement.  
However, the evidence does not show callosities, any indication 
of swelling on use, or objective evidence of marked deformity.  
Accordingly, the pain and discomfort caused by the Veteran's 
bilateral pes planus is more accurately characterized as showing 
moderate, as opposed to severe, symptoms.  Regarding functional 
impairment, the January 2008 VA medical examination noted that 
the Veteran is only able to stand for 15 minutes due to 
increasing pain and discomfort, was unable to walk on uneven 
terrain, and avoided steps, stairs, and ladders.  Such impairment 
is consistent with a moderate level pes planus.  Hence, although 
there is some functional loss, the Veteran's bilateral pes planus 
is adequately represented in the 10 percent rating currently 
assigned for moderate pes planus as none of the functional loss 
is equivalent to marked deformity, swelling on use, or 
characteristic callosities.  38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 
Vet. App. at 206.  

The Board has also considered whether referral for consideration 
of an extraschedular rating is indicated.  38 C.F.R. 
§ 3.321(b)(1).  In this regard, it is noted that the symptoms and 
impairment associated with the service-connected bilateral pes 
planus are fully encompassed by the schedular criteria now 
assigned; therefore, those criteria are not inadequate, and 
referral for extraschedular consideration is not warranted.  See 
Thun v. Peake, 22 Vet. App. 111 (2008).  

Finally, as the Veteran is retired and has not alleged 
unemployability due to his service-connected bilateral pes 
planus, the matter of entitlement to a total rating based on 
individual unemployability is not raised by the record.  See Rice 
v. Shinseki, 22 Vet. App. 447 (2009).  [The Board notes that a 
May 1992 private treatment record notes the Veteran is currently 
on disability for job-related injuries to his right shoulder, 
neck and right hand.  And SSA records show that in September 2000 
he was awarded SSA benefits based on other disabilities, i.e., 
degenerative disc disease of the cervical and lumbar spine, and 
impingement syndrome (right shoulder).]  





ORDER

An increased combined 20 percent (based on a formulation of 10 
percent for each foot under Code 5003) rating is granted for the 
Veteran's bilateral pes planus, from the (earlier) effective date 
of September 25, 1998 and subject to the regulations governing 
payment of monetary awards.  


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs