Citation Nr: 1035190 Decision Date: 09/17/10 Archive Date: 09/21/10 DOCKET NO. 05-37 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating higher than 30 percent for service-connected bilateral pes planus (flat feet). 2. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran had active service from September 1963 to September 1965. This appeal to the Board of Veterans' Appeals (Board) is from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before a Decision Review Officer (DRO) at a hearing at the RO in October 2006. In August 2008, the Board remanded this case to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. As will be discussed subsequently, the Veteran claims TDIU, therefore, that issue is raised by the record, is properly before the Board, and has been included on the title page of this decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). The claim of TDIU is REMANDED to the RO via the AMC for development. FINDING OF FACT The Veteran's bilateral pes planus (flat feet) is sufficiently productive of pronounced flat foot characteristics including marked pronation, extreme plantar tenderness, probable marked inward displacement, along with pain, tenderness, and weakness. CONCLUSION OF LAW The criteria for the assignment of a 50 percent disability rating, but no higher, for the service-connected bilateral pes planus (flat feet) have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.21, 4.71(a), Diagnostic Code 5276 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating claims 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). As the Veteran's service- connected pes planus is assigned the maximum schedular evaluation pursuant to this decision, there is no prejudice to the Veteran regardless of whether VA failed to adequately notify and/or assist the Veteran in the development of his claim. See, e.g., 38 C.F.R. § 20.1102 (harmless error). A Rating Higher than 30 Percent for Bilateral Pes Planus (Flat Feet) 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. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. 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. 38 C.F.R. § 4.14. While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, however, there must be consideration of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran's service-connected bilateral flat feet are rated as 30 percent disabling under 38 C.F.R. § 4.71, Diagnostic Code (DC) 5276. A bilateral acquired flatfoot (pes planus) will be rated as 30 percent disabling where severe with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A maximum 50 percent disability rating is assigned where the bilateral flat foot is shown to be 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. 38 C.F.R. Part 4, Diagnostic Code 5276. The medical evidence shows the Veteran has a long history of bilateral foot disability with pain while walking as a primary symptom. VA clinical and radiological findings from the past confirm the Veteran has bilateral pes planus. A VA medical examination of the feet in February 2005 revealed the Veteran's continued complaints of bilateral foot pain while walking, with flat feet on standing and tenderness on the dorsum of the feet. He used Tylenol for pain as well as sitting down and massage of the feet. It was reported at the time that the Veteran was retired from working, and he used shoe inserts and a cane on occasion. VA and private clinical records through 2008 show continued treatment for bilateral foot disability, along with the Veteran complaints of worsening foot problems. In March 2009 a VA compensation examination of the feet was performed. The Veteran complained of pain, weakness, stiffness, and fatigability of the feet. It was reported that there was no history of hospitalization or surgery for his feet. He had flare-ups of foot symptoms weekly or more often that lasted less than a day. He stated that he was unable to walk too far, and he got relaxation when he took pressure off his feet. The Veteran reported that he was unable to stand for more than a few minutes, or walk more than a few yards. He wore shoe inserts that provided fair efficacy. The physical examination of the feet revealed painful motion, swelling, tenderness, instability, abnormal weight bearing, and muscle atrophy. Objective evidence of painful motion included pain upon dorsiflexion of the feet and pain in the tarsometatarsal region of the feet, bilaterally. 2+ pitting edema was noted. Pain was also observed along the neck of the talus bilaterally. It was reported that the Veteran required a cane to ambulate, and the examiner noted an unusual shoe wear pattern. He was not employed. He last worked in 1991, with one month working in 1993 that was terminated because he was unable to stand too long. The diagnosis was painful feet. The examiner noted that the bilateral pes planus severely affected the Veteran's ability to perform certain activities of daily living including chores shopping and traveling. The disability completely prevented the Veteran from engaging in exercise, sports or recreation. In an April 2009 addendum to the examination, the examining podiatrist reported that the Veteran had marked pronation of the feet manifested by weak posterior tibial muscle group that could cause increased pronation. It was stated that the Veteran had extreme tenderness of the plantar surfaces of the feet and mid- moderate tenderness upon palpation of the medial arch. Regarding whether the Veteran had marked inward displacement, the podiatrist stated that if inward displacement means pronation, then there was moderate inward displacement with weight bearing. There were no spasms noted upon inversion/eversion of the foot at the tendoachilles. The Veteran had orthopedic shoes with some correction of the pes planus that the Veteran reported had helped. There was weakness along the dorsiflexors and evertors of the foot that caused increased pronation. The podiatrist opined the Veteran had weakness of the foot secondary to posterior tibial and dorsiflexor muscle group that caused an increase in pronation in the foot leading to pes planus adult acquired. The increased pronation can lead to flare-ups and weakness in the medial arch. In sum, the evidence shows that the Veteran's bilateral pes planus has indeed undergone some increased pathology. The previous medical examination in 2005 revealed symptoms primarily limited to pain and tenderness of the feet, whereas in the most recent VA medical examination various additional symptomatology is shown including weakness, stiffness, and fatigability of both feet. These objective findings are in addition to the continued complaints of bilateral foot pain and dorsum tenderness noted by the Veteran. In addition, the most recent examination identified some characteristics associated with pronounced flat feet under Diagnostic Code 5276, including marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement. The clinical findings in 2009 do not show evidence of severe spasm of the feet; however, pertinent regulations do not require that all cases show all the findings specified by the Rating Schedule. The findings must be sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. 38 C.F.R. § 4.21. In any event considering the overall findings and all the other symptoms associated with the Veteran's bilateral pes planus, it is apparent that Veteran's disability picture most nearly approximates the 50 percent rating under Diagnostic Code 5276 for pronounced bilateral flatfoot. This is the maximum evaluation awarded under this diagnostic code. The Board has reviewed alternative diagnostic codes, and finds that they are inapplicable in this case. See 38 C.F.R. § 4.71a. The potential application of 38 C.F.R. § 3.321(b)(1) has also been considered, for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The evidence, primarily from medical histories, shows that the Veteran has been retired from work for many years, and he is not currently working. In addition, the Veteran's bilateral flat feet disability has not necessitated surgery or frequent periods of hospitalization and has not otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disability. In any event, the requirements for referral for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) have not been met. See Thun v. Peake, 22 Vet. App. 111 (2008). The regular schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. Where, as here, the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. The Board is aware of the report that the Veteran's termination from work back in 1993 reportedly was due to his inability to stand for long periods, and that may be attributed to his bilateral pes planus or flat feet. It is noted though that the issue of TDIU addresses such assertion which is the subject of the remand portion of this decision and further development. For the reasons and bases set forth above, the evidence of record supports the assignment of a 50 percent rating, but no higher, for the service-connected pes planus. The criteria for the assignment of this 50 percent rating, but no higher, have been met during the entire appeal period, as there are no distinct time periods where the Veteran's symptoms warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER A 50 percent rating is granted for bilateral pes planus (flat feet), subject to the laws and regulations governing the payment of VA compensation. REMAND In a June 2010 informal hearing presentation, the Veteran's accredited representative raises the issue of entitlement to a TDIU, stating that in the March 2009 medical examination it was reported that the Veteran was terminated from his last job (in 1993) because he was unable to stand too long, apparently relating this with his service connection bilateral pes planus. Again, the Veteran has therefore raised the issue TDIU. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (Once a veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider total rating for compensation based upon individual unemployability). With regard to a TDIU, the RO has not developed or adjudicated this issue. The U.S. Court of Appeals for Veterans Claims recently held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id at 455. Although the Veteran has already perfected an appeal, the matter should be remanded to the RO to address the issue of TDIU, in accordance with the holding in Rice. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2007). Expedited handling is requested.) 1. As to the issue of TDIU, send a duty-to- assist notice letter notifying the Veteran and his representative of any information or lay or medical evidence not previously provided that is necessary to substantiate the TDIU claim on appeal, either on a schedular or extra-schedular basis. This notice must indicate what information or evidence the Veteran should provide, and of what information or evidence VA will attempt to obtain on his behalf. See 38 U.S.C.A. § 5103(a) and 38 C.F.R. 3.159(b). This letter should also comply with the Court case of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Specifically, this letter should advise him of how VA assigns disability ratings and effective dates for any grant of service connection. 2. After completion of the above and any additional development deemed necessary, including obtaining Social Security Administration records and scheduling a VA examination, if appropriate, adjudicate the issue of entitlement to a TDIU. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ L. B. CRYAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs