Citation Nr: 1237124 Decision Date: 10/25/12 Archive Date: 11/09/12 DOCKET NO. 09-17 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial compensable evaluation for bilateral pes planus. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1980 to March 1989 and from July 1990 to January 2002. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In May 2012, the Board remanded the appeal to the RO for further development. A review of the Virtual VA paperless claims processing system reveals VA treatment records pertinent to the present appeal. FINDING OF FACT Throughout the appeal, the Veteran's bilateral pes planus is manifested by a disability picture that approximates moderate flatfoot, where the weight-bearing line is over or medial to the great toe with pain on use of the feet. CONCLUSION OF LAW The criteria for a 10 percent rating for bilateral pes planus are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Code 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78F.3d 604 (Fed. Cir. 1996) (per curiam) (table). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996). Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), defines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 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 (West 2002); 38 C.F.R. § 3.159(b). VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). The claim for an increased rating is a downstream issue from the initial grant of service connection from an RO rating decision. See Grantham v. Brown, 114 F.3d 1156 (1997). VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). Sufficient evidence is of record to grant the Veteran's claim for an initial rating in excess of 10 percent for bilateral pes planus. No further notice or development is needed with respect to this matter. Merits of the Claim Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet.App. 282 (1991). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet.App. 119 (1999). The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. 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 bilateral pes planus was assigned a noncompensable evaluation under Diagnostic Code 5276 for acquired flatfoot. 38 C.F.R. § 4.71a. Under Diagnostic Code 5276, a noncompensable evaluation is assigned for mild flatfoot where the symptoms are relieved by built-up shoe or arch support. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012). A 10 percent evaluation is warranted for moderate bilateral flatfoot where the weight-bearing line is over or medial to the great toe, there is inward bowing of the tendo achillis, and pain on manipulation and use of the feet. Id. A 30 percent evaluation is assigned for severe bilateral flatfoot with objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. Id. A 50 percent evaluation is warranted for pronounced bilateral flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and no improvement with use of orthopedic shoes or appliances. Id. During a January 2003 VA feet examination, the Veteran reported bilateral foot pain which began in the mid-1980's related to bunions. She had bunionectomies in October 2000 and February 2001. She is service-connected for post-surgical arthritic changes from the right and left foot bunionectomies. The Veteran indicated that she used orthotics due to bilateral flatfoot. On physical examination, there was no evidence of any trauma or deformity, bilaterally. The examiner noted that the bilateral arches were normal and there was no evidence of pes planus on examination. A December 2003 VA treatment note notes the Veteran complained of ongoing bilateral toe/foot pain. She reported that she went to a podiatrist following her October 2000 and February 2001 bunionectomies but she had not sought follow-up treatment in the recent past. In a February 2004 VA treatment note, the Veteran reported that she had painful feet, but she rated her pain as 0 out of 10 in severity. She noted that she had intermittent arthritis from her bilateral foot surgery. The diagnoses were arthralgia and muscle spasms. In an April 2004 VA treatment note, the Veteran inquired about orthotics. She rated her bilateral foot pain as 0 out of 10 in severity. A March 2005 treatment note from a military treatment facility documented the Veteran's complaints of bilateral foot muscle spasms. An October 2005 treatment note from a military treatment facility noted the Veteran's right foot was not swollen and there was no tenderness on palpation after she fell while running and twisted her right ankle. During an August 2009 VA podiatry consultation, the Veteran complained of foot and toe cramps. The diagnoses were achy feet and metatarsalgia. In October 2009, VA issued the Veteran custom orthotic shoe inserts. A November 2009 VA treatment note indicated that the Veteran reported that her feet continue to cramp in the toes despite her use of the custom orthotic shoe inserts. In a November 2011 VA treatment note, the Veteran indicated that she was unable to wear her custom orthotic shoe inserts because they were hard and caused increased pain in her feet. She reported that she worked in a warehouse and she wore supportive shoes for comfort. She complained that her bilateral foot pain was migrating to her heels and the bottom of her arches. She also noted cramping in her feet which manifested after she had bunion surgery. On examination, the podiatrist noted mildly decreased medial arches, bilaterally; mild palpation tenderness to the plantar metatarsal heads; and decreased fat pad density, bilaterally. The diagnoses included metatarsalgia and pes planus. The podiatrist ordered a consultation for custom orthotics with metatarsal pads and extra foam padding. In a June 2012 VA treatment note, the Veteran reported that her orthotic inserts were much better than her previous inserts; however, she continued to have pain along her heels and arches and cramping in her great toes. The examining podiatrist noted the Veteran's post-operative foot cramping was a residual from bunion surgery. She discussed the conservative treatment of pes planus by using orthotics versus surgical intervention for her post-operative complications. During a June 2012 VA feet examination, the Veteran indicated that she had bilateral pain on the use of her feet, but she denied pain on manipulation of the feet. There was no indication of swelling on use and no characteristic calluses were noted. She acknowledged extreme tenderness of the plantar surface of both feet, but she stated that the tenderness was improved by orthopedic shoes or appliances. She also reported that her symptoms were relieved by arch supports, built-up shoes, or orthotics. The examiner noted decreased longitudinal arch height on weight-bearing in both feet. There was no objective evidence of marked deformity of the feet, including pronation or abduction; however, the examiner noted that the weight-bearing line fell over or medial to the great toe bilaterally. There was no lower extremity deformity other than pes planus which caused alteration of the weight-bearing lone. There was no inward bowing of the Achilles tendon and no marked inward displacement and severe spasm of the Achilles tendon. The examiner opined that the Veteran was able to perform her job as a program analyst, however, she took breaks if she was performing a task that required standing for longer than 10 to 15 minutes due to bilateral arch and heel pain and cramping in her toes. The examiner also noted that the Veteran shifted her weight back and forth if she was required to stand longer than 5 minutes due to her bilateral foot pain. The Veteran reported that she was not absent from work due to her feet symptoms and she was able to perform activities of daily living with rests if the activity involved walking over 1/4 mile or standing longer than 15 minutes. Resolving reasonable doubt in favor of the Veteran, her bilateral pes planus more closely approximates the criteria for a 10 percent rating throughout the appeal. Based on objective findings that the weight-bearing line fell over or medial to the great toe bilaterally and subjective findings of bilateral foot pain on use, the manifestations of the disability more closely resemble the criteria for moderate pes planus. The Veteran's statements regarding bilateral foot pain are competent evidence that addresses the extent of her disability and there is no basis for finding that these statements are not credible. Higher evaluations of 30 and 50 percent are not warranted because there was no objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; or pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and no improvement with use of orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board has considered whether referral for an extraschedular rating is appropriate for the Veteran's pes planus disability under the provisions of 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111, 115 (2008). The determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If it is determined that this is so, the second step of the inquiry requires a determination of "whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. If the first two steps of the inquiry have been satisfied, the third step requires referral of the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. With respect to the initial inquiry posed by Thun, the Board finds that the Veteran's disability level and symptomatology are contemplated by the rating criteria. The Veteran has not reported any symptoms that produce impairment outside the scope of the criteria and there are no objective findings that suggest the bilateral pes planus produces any unusual manifestations. The examiner did not report an exceptional disability picture with symptoms not represented in the rating schedule. There is no indication that the average industrial impairment from the bilateral foot disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. ORDER An initial evaluation of 10 percent for bilateral pes planus is granted, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs