Citation Nr: 1239655 Decision Date: 11/19/12 Archive Date: 11/27/12 DOCKET NO. 08-17 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for bilateral pes planus. 2. Entitlement to a disability rating in excess of 10 percent for chondromalacia patella of the right knee. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1983 to August 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which, in relevant part, declined to increase the disability ratings for the Veteran's claims on appeal. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2010. A transcript of that hearing is of record. This claim was previously before the Board in April 2011 and December 2011. In April 2011, the Board remanded the claim for further development, including most especially, scheduling the Veteran for a new and contemporaneous VA examination to assess the severity of his service-connected pes planus. Following the Board's April 2011 remand, the RO increased the Veteran's disability rating for service-connected bilateral pes planus to 20 percent, effective June 28, 2006. In December 2011, the Board subsequently increased the disability rating for service-connected bilateral pes planus to 30 percent. This rating assignment was implemented by the RO in a January 2012 rating decision, and made effective June 28, 2006, the date of his increased rating claim. The Veteran subsequently appealed this rating assignment to the United States Court of Appeals for Veterans Claims (Court). In an August 2012 Joint Motion for Partial Remand (Joint Motion), the Court was asked to vacate and remand the Board's December 2011 decision to the extent that it denied entitlement to a disability rating in excess of 30 percent for bilateral pes planus, and to remand the issue for further consideration consistent with the terms of the Joint Motion. The Court granted the Joint Motion in an Order issued later in August 2012, and remanded the matter for compliance with the Joint Motion. The issue of entitlement to an increased rating for the Veteran's service-connected post-operative residuals of the right fifth toe with osteomyelitis was raised by the record and previously referred by the Board to the Agency of Original Jurisdiction (AOJ) in Board decisions dated in April 2011 and December 2011. It appears, however, that still no action has been taken on that issue, and therefore, it is again referred to the AOJ for appropriate action. In the December 2011 decision, the Board additionally remanded the Veteran's claim of entitlement to a disability rating in excess of 10 percent for chondromalacia patella of the right knee to the RO via the Appeals Management Center (AMC), in Washington, DC. As it appears that issue is still under development, it is again REMANDED to the RO via the AMC, and is addressed in the REMAND portion of the decision below. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The Veteran's service-connected bilateral pes planus is manifested by marked pronation, flattened arches, tenderness, and callosities, with use of corrective shoes and orthotic inserts, approximating no more than severe bilateral acquired flatfeet. 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); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.71a, Diagnostic Code (DC) 5276 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2011); 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. See 38 C.F.R. § 3.159(b) (2011). This notice must be provided prior to an initial unfavorable decision on the claim by the Agency of Original Jurisdiction. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004). A VCAA letter was issued by the RO in August 2006 and informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above. An additional VCAA letter was sent to the Veteran in April 2011. Regarding the duty to assist, the RO has obtained the Veteran's VA and private treatment records and has provided him with multiple VA examinations. While the record suggests that outstanding private treatment records may exist with respect to the issue on appeal, attempts to elicit information from the Veteran in order to obtain such records have been ignored. See April 2011 letter from the AMC to the Veteran, and July 2011 supplemental statement of the case (SSOC). Additionally, the Board is satisfied that the RO/AMC substantially complied with the Board's April 2011 remand directives with respect to the pes planus issue on appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that it directed the RO/AMC to obtain a complete copy of the Veteran's VA treatment records from the VA Community Based Outpatient Clinic in Worcester, Massachusetts; to obtain treatment record from private healthcare providers, as identified by the Veteran; and to afford the Veteran a VA orthopedic examination of his knees and a VA foot examination to assess the severity of these service-connected disabilities. In this regard, on remand, the RO/AMC requested the Veteran's VA treatment records from the VA Medical Center (VAMC) in Boston, Massachusetts, relating to treatment rendered at the medical center and outpatient clinics; and requested that the Veteran provide information pertaining to private treatment rendered for his service connected pes planus and release forms in order to request treatment records on his behalf. The Veteran did not respond. Additionally, in May 2011, the Veteran was afforded a recent VA foot examination that adequately assessed the severity of this service-connected disability. Furthermore, the Veteran was afforded a hearing before a Board VLJ in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note the bases of the prior determination or the elements that were lacking to substantiate the Veteran's claim. The VLJ and the Veteran's representative asked specific questions, however, directed at identifying whether the Veteran had evidence required to meet the criteria for an increased disability rating. Additionally, the VLJ did specifically seek to identify any pertinent evidence not currently associated with the claim. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the Veteran's claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate this claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his increased rating claim on appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this issue on appeal. Finally, while additional evidence has been associated with the claims folder since the issuance of the July 2011 supplemental statement of the case, it is not pertinent to the claim for an increased rating for pes planus. Thus, remand for the issuance of another supplemental statement of the case is not warranted. II. Increased Rating The Veteran was originally granted service connection for pes planus in a September 1996 rating decision and was assigned a 10 percent disability rating, effective September 5, 1995, the date of his service connection claim. He filed the instant claim for an increased disability rating for his service-connected pes planus in June 2006. In a July 2011 rating decision, following the Board's April 2011 remand of the Veteran's appeal, the RO increased his disability rating for service-connected pes planus to 20 percent, effective June 28, 2006, the date of his increased rating claim. The Board subsequently increased this disability rating to 30 percent in the December 2011 decision. A. Governing Law and Regulations Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2011). An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2011). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2011). Otherwise, the lower rating will be assigned. Id. Although 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). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application 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. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14 (2011). A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C.A. § 1155 (2011); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a) (West 2002). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b) (West 2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). B. Analysis Disabilities of the feet are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5276 through 5284. The Veteran's bilateral pes planus is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276. He is currently assigned a 30 percent rating under this code, which is warranted for bilateral severe pes planus manifested by objective evidence of a marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A higher 50 percent disability rating, the highest rating available under this code, is only warranted for pronounced bilateral pes planus manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved with orthopedic shoes or appliances. After a thorough review of all of the evidence of record, including VA examination reports, VA and private treatment records, and the Veteran's lay statements, the Board finds that the currently assigned 30 percent disability rating under DC 5276 is the appropriate disability rating based on the symptoms manifested by his service-connected bilateral pes planus. In connection with the Veteran's increased rating claim, his feet were examined as part of a VA joint examination in September 2006. The VA examiner noted that he had a history of using orthotic shoe inserts and a history of calluses on his right fifth toe, which is shown to be associated with his service-connected hammertoe disability. On examination, he noted that the Veteran's medial arches were almost on the floor when standing. The examiner further noted that the Veteran had a very slight valgus and that both feet were somewhat splayed and pronated. A review of the Veteran's private treatment records reveals that he received treatment for his foot condition in July 2006. His private podiatrist diagnosed him with plantar fasciitis, pronation, exostosis, and with pes planus. The Veteran was instructed to wear stiff-soled athletic footwear at all times when standing and walking. A review of his VA treatment record reveals that in November 2006, he was fitted with model 8000, size 11 wide sneakers and casted for the fabrication of Trilam inserts. Both private and VA treatment records reveal that he has been prescribed orthotics for his feet on multiple occasions throughout the years. At this September 2010 personal hearing, the Veteran testified that he needed constant support for his arches whenever he is standing or walking. He reported having occasional sharp pain in his feet when he walks without adequate arch support. He also testified to having occasional sharp pains in his arches when walking down stairs. Following the Board's April 2011 remand, the Veteran was afforded his most recent VA foot examination in May 2011. The examiner noted the Veteran's history of flat feet and noted that he did not have a related history of surgery and that he did not have a history of trauma to the feet. During his examination, the Veteran reported having a shooting pain from the top of his cuboid area down to the bottom of his left foot. He additionally reported having pain under the arch of his right foot. He reported only being able to stand for 15 to 30 minutes and to walk for one-quarter of a mile. He reported using orthotic inserts to support his flat feet, with only fair results. There were no indicated flare-ups of foot joint disease. Examination of his feet revealed no evidence of swelling, instability, or weakness. Both feet exhibited symptoms of tenderness and abnormal weight bearing, evidenced by callosities. Painful motion of the left foot was noted upon midfoot manipulation. Tenderness was noted laterally on the dorsal aspect of metatarsal bases 4/5 and on the cuboid area of the left foot. Right foot tenderness was noted under the medial ban of the plantar fascia. Marked pronation was evident with both feet. The examiner noted that the Veteran's arches were present when he was not bearing weight on his feet, but that they were not present on weight bearing, bilaterally. A valgus of zero to five degrees was noted bilaterally and the weight bearing line was noted as medial to the great toe, bilaterally. The examiner noted that the Veteran's pes planus disability had significant effects on his occupation and on most of his daily activities. The Board finds that the evidence of record, and especially the May 2011 VA examination report, reflects symptoms which most closely approximate the criteria for a 30 percent disability rating for severe bilateral pes planus. The Veteran has been shown to have marked pronation in both feet and marked deformity. His arches were virtually flattened when weight bearing. He was also noted to have tenderness and callosities bilaterally, and to have pain on manipulation in the left foot. While the Veteran's bilateral pes planus is manifested by symptoms indicative of a severe flatfoot disorder, the symptoms are not indicative of a pronounced flatfoot disorder, as would be required for a 50 percent disability rating. As noted above, a 50 percent disability rating, is warranted for pronounced bilateral pes planus manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved with orthopedic shoes or appliances. In this regard, while the Veteran was noted to have marked pronation, bilaterally, and tenderness of the medial band of his right plantar fascia, he did not exhibit extreme tenderness, marked inward displacement, or severe spasms of the tendo achillis on manipulation in either foot. Moreover, his flat foot disability was noted as having fair improvement with the use of orthotic devices. As such, the criteria for the assignment of a 50 percent rating have not been more nearly approximated. See 38 C.F.R. § 4.7 (2011). Accordingly, the Board finds that the criteria for a rating in excess of 30 percent disability have not been met. In reaching this determination, the Board has considered the applicability of other rating criteria used for rating disabilities of the feet. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Butts, 5 Vet. App. at 538 (the assignment of a particular DC dependent on the facts of a particular case). The Veteran has not been noted to have bilateral weak foot, claw foot, hallux rigidus, hallux valgus, metatarsalgia, or malunion of nonunion of the tarsal or metatarsal bones; thus, Diagnostic Codes 5277, 5278, 5279, 5280, 5281, and 5283 are all clearly inapplicable. Just as important, service connection is not in effect for these disabilities. Moreover, while he has been diagnosed with a right fifth hammertoe, service connection is already in effect for that disability and it is separately rated; thus, consideration of Diagnostic Code 5282 is not warranted. Finally, the Board has considered the applicability of Diagnostic Code 5284. DC 5284 provides criteria for rating foot injuries, other (i.e. moderate, moderately severe, and severe). The Court recently held that DC 5284 is applicable when "the other DCs addressing foot disabilities do not address the specific foot disability suffered by [a] veteran." Fitzgerald v. Shinseki, 2012 WL 3091052 (Vet. App. July 31, 2012). Akin to the factual scenario presented in Fitzgerald, neither the Veteran nor his representative in this appeal has contended that DC 5276 does not specifically address his service-connected disability for which he is seeking a higher disability rating. The Veteran is service connected for pes planus, and DC 5276 addresses his specific foot disability. Further, 38 C.F.R. § 4.20 provides that when a disability is unlisted in the rating criteria, then it is permissible to rate the disability under the criteria for a closely related disease or injury. Such is not the case with the Veteran's bilateral pes planus. Rather, his service-connected pes planus disability is clearly delineated in DC 5276, and the symptoms associated with his disability are substantially described in the rating criteria described under this Diagnostic Code. While he has also been noted to suffer from plantar fasciitis and exostosis, service connection is not in effect for these disabilities. And notably, tenderness of the plantar surfaces of the feet is a symptom that is contemplated in the rating criteria described under DC 5276. Thus, the Board concludes that the symptoms associated with the Veteran's service-connected bilateral pes planus disability are most appropriately rated under the rating criteria described in DC 5276. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). However, in that regard, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The rating for pes planus is not predicated on limitation of motion. Moreover, pain on manipulation and use is among the criteria specifically considered when assigning a disability evaluation for pes planus under Diagnostic Code 5276. Thus no further consideration pursuant to the Court's holding in DeLuca is warranted in this appeal. III. Extraschedular Consideration The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2011). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2011). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The symptoms associated with the Veteran's service-connected pes planus disability (i.e., callosities, abnormal weight bearing, marked pronation, tenderness, pain on use, and required use of orthotics for the feet) are not shown to cause any impairment that is not already contemplated by the rating criteria set forth above, and the Board finds that the applied rating criteria reasonably describe his disability. The rating criteria are, therefore, adequate to evaluate the Veteran's bilateral pes planus and referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to a disability rating in excess of 30 percent for bilateral pes planus is denied. REMAND In the Board's prior December 2011 decision, it remanded the Veteran's claim of entitlement to a disability rating in excess of 10 percent for chondromalacia patella of the right knee for further development. This development was to include, most especially, obtaining the results of a prior VA examination report that included a description of the Veteran's right knee scars, as had been referenced in his later May 2011 VA joint examination; and to afford him a new VA orthopedic examination to assess the severity of his service-connected right knee disability, including obtaining an adequate description of any scars that are attributable to his August 1999 right knee arthroscopic surgery. As it appears that his claim is still under development, it is again remanded to the RO via the AMC in order to ensure compliance with the Board's prior December 2011 remand directives. Accordingly, this issue is REMANDED for the following action: 1. Ensure that all development requested in the Board's December 2011 remand directives is completed. 2. Then, readjudicate the Veteran's increased rating claim for his service-connected right knee disability on appeal. If the claim is not granted in full, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return this appeal to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters 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. 2011). ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs