Citation Nr: 1300888	
Decision Date: 01/09/13    Archive Date: 01/16/13

DOCKET NO.  09-38 321	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to an increased disability rating for service-connected bilateral pes planus, evaluated as 10 percent disabling prior to September 22, 2008, and as 30 percent disabling therefrom.


REPRESENTATION

Veteran represented by:	National Association for Black Veterans, Inc.


ATTORNEY FOR THE BOARD

K. K. Buckley, Counsel






INTRODUCTION

The Veteran served on active duty from September 1987 to August 1991.  He is the recipient of the Combat Action Ribbon.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision, which confirmed and continued a 10 percent disability rating for the service-connected bilateral pes planus.

In a May 2011 Board decision, the claim was remanded for further evidentiary development.  The VA Appeals Management Center (AMC) continued the previous denial in an August 2011 supplemental statement of the case (SSOC).

In December 2011, the Board again remanded the Veteran's claim for further evidentiary development.  A review of the record reflects substantial compliance with the Board's Remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  

In a July 2012 rating decision, the AMC increased the disability rating for the Veteran's service-connected bilateral pes planus to 30 percent from September 22, 2008.  The Veteran has not expressed satisfaction with the increased disability rating.  This case thus remains in appellate status.  See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated).  A SSOC was issued in July 2012.  The Veteran's VA claims file has been returned to the Board for further appellate proceedings.

As noted above, the July 2012 rating decision awarded an increase in the Veteran's evaluation, to 30 percent effective September 22, 2008.  However, the instant claim was initiated via correspondence received by the RO on August 11, 2008.  Accordingly, the issue on appeal has been characterized as set forth on the title page of this decision. 



FINDINGS OF FACT

1.  Throughout the rating period on appeal (i.e., from August 11, 2008), the Veteran's bilateral pes planus with bilateral plantar fasciitis and chronic bilateral posterior tibial tendonitis has been manifested by pronounced symptoms, including marked pronation, extreme tenderness of plantar surfaces of the feet, with no improvement upon the use of orthotics.

2.  The Veteran's service-connected bilateral pes planus with bilateral plantar fasciitis and chronic bilateral posterior tibial tendonitis does not present a disability picture so exceptional or unusual as to render impractical the application of the schedular rating standards.


CONCLUSIONS OF LAW

Throughout the rating period on appeal (i.e., from August 11, 2008), the criteria for a disability rating of 50 percent for service-connected bilateral pes planus with bilateral plantar fasciitis and chronic bilateral posterior tibial tendonitis have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5276 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.129(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that claimant is expected to provide.

Further, in Dingess v. Nicholson, 19 Vet. Ap. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim.  See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded.

With regard to claims for increased disability ratings for service-connected conditions in particular, the law requires VA to notify the claimant that, to substantiate a claim, the claimant was must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular veteran's circumstances; that is, VA need not notify a veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular veteran's daily life.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

Here, letters dated in August 2008 and March 2009 satisfied the duty to notify provisions concerning this increased rating claim.  In particular, the letters informed the Veteran of the need for evidence of a worsening of his service-connected disability.  He was notified of the types of evidence that could substantiate his claim, such as medical records or lay statements regarding personal observations.  He was asked to provide information as to where he had been treated and was informed that VA was responsible for obtaining any federal records, VA records, and any medical examinations, if necessary.  In addition, the letters informed the Veteran that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  He was also provided with notice of how disability ratings and effective dates are determined.

In addition, the RO obtained the Veteran's service treatment records (STRs) and post-service medical records and also secured three examinations in furtherance of his claim.  The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims file.  Accordingly, VA has no duty to inform or assist that was unmet with respect to obtaining all available identified medical records.

VA examinations with respect to the bilateral pes planus claim on appeal were obtained in September 2008, June 2011, and January 2012.  38 C.F.R. § 3.159(c)(4).  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The VA examinations obtained here are sufficient as they considered all of the pertinent evidence of record, including the statements of the Veteran, and provided explanations for the opinions stated as well as the medical information necessary to apply the rating criteria.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome here, the Board finds that any such failure is harmless.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  In sum, the facts relevant to this appeal have been properly developed, and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159.  Thus, the Veteran will not be prejudiced by the Board's proceeding to adjudicate the merits of his increased rating claim.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

II.  Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.  38 C.F.R. Part 4.  The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.  Where there is a question as to which of two ratings should be applied, the higher rating 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 general, when 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, 58 (1994).  However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, as indicated above, the AMC recently assigned a 30 percent evaluation from September 22, 2008.  See the rating decision dated July 2012.  A 10 percent disability rating is assigned prior to September 22, 2008.  The Board again notes that the date of the increased rating claim was August 11, 2008.  As discussed below, the Board has thoroughly reviewed the record and concludes that a 50 percent disability rating is appropriate throughout the appeal period.

Disabilities of the feet are evaluated under Diagnostic Codes 5276-5284.  38 C.F.R. § 4.71a.  The Veteran's bilateral foot disability has been rated under Diagnostic Code 5276.  Under Diagnostic Code 5276, a 10 percent evaluation is assigned for unilateral or bilateral moderate acquired flatfoot 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.  See 38 C.F.R. § 4.71a, Diagnostic Code 5276.  A 30 percent evaluation is assigned for bilateral severe acquired flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated indication of swelling on use, and characteristic callosities.  See 38 C.F.R. § 4.71a, Diagnostic Code 5276.  Finally, a 50 percent evaluation is assigned for bilateral pronounced acquired flatfoot 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.  See 38 C.F.R. § 4.71a, Diagnostic Code 5276.

Foot injuries may also be evaluated under Diagnostic Code 5284.  Under these criteria a 30 percent disability evaluation is warranted for severe foot injury, a 20 percent disability evaluation is warranted for moderately severe foot injury, and a 10 percent disability is warranted for moderate foot injury.  As the service-connected bilateral pes planus with bilateral plantar fasciitis and chronic bilateral posterior tibial tendonitis is currently rated as 30 percent disabling, Diagnostic Code 5284 does not avail the Veteran.

The Board has also reviewed the remaining diagnostic codes relating to foot disabilities and finds that they are not applicable.  Diagnostic Codes 5277 (weak foot), 5279 (metatarsalgia), 5280 (hallux valgus), 5281 (hallux rigidus), and 5282 (hammer toe) do not provide for disabilities in excess of those assigned for the Veteran's pes planus.  Accordingly, these rating codes are not for application.  Likewise, the evidence of record (to include the three VA examinations undertaken in 2008, 2011, and 2012) does not show acquired claw foot (pes cavus) or malunion or nonunion of the tarsal or metatarsal bones.  Accordingly, Diagnostic Codes 5278 (claw foot) and 5283 (Tarsal, or metatarsal bones, malunion of, or nonunion of) are not for application.

As will be described below, the January 2012 VA examiner indicated that the Veteran's bilateral plantar fasciitis and posterior tibial tendonitis are more likely than not due to the service-connected bilateral pes planus.  However, due to the overlapping symptomatology associated with these diagnoses, the Board is unable to assign separate disability ratings as such would violate the anti-pyramiding of 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses is to be avoided).

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  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 diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO, Diagnostic Code 5276.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

Diagnostic Code 5276 is deemed by the Board to be the most appropriate code, because it pertains specifically to the disability at issue (bilateral flatfoot) and also because it provides specific guidance as to how symptoms of this disability are to be evaluated.  The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code should be used.  Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 5276.

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 (2012).  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.

After the evidence is assembled, it is the Board's responsibility to evaluate the entire record.  See 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 issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012).

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.

Here, the Veteran contends that his bilateral pes planus is more severe than the assigned 30 percent rating indicates.  Having reviewed the entire record, the Board finds that the symptoms associated with the Veteran's bilateral pes planus more closely approximate the criteria for a higher evaluation of 50 percent under Diagnostic Code 5276.  As an initial matter, the criteria at Diagnostic Code 5276 are not stated in the conjunctive; therefore, it is therefore not required that all of the manifestations that are listed be shown.  See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive 'and' in a statutory provision meant that all of the conditions listed in the provision must be met).  Thus, a higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  See 38 C.F.R. § 4.7.

Following the initiation of his increased rating claim, the Veteran was afforded a VA examination in September 2008.  He reported pain in the arches of his feet, which occurred constantly.  He described the pain as localized, aching, and sharp.  He indicated that such pain was elicited by physical activity and relieved by rest.  The Veteran stated that while experiencing pain, he was able to function without medication.  He denied any pain, weakness, stiffness, swelling, or fatigue while at rest.  The examiner reported that the Veteran's bilateral pes planus is treated with orthotics, without much relief.  The Veteran reported functional impairment due to his bilateral pes planus including "lack of ability to walk, exercise comfortably, and relax afterwards without constant pain or peeling of feet."  The September 2008 VA examiner noted that the Veteran's posture and gait were within normal limits.  Examination of the feet did not reveal any signs of abnormal weight bearing or breakdown, callosities or any unusual shoe wear pattern.  Examination also revealed tenderness, but did not demonstrate painful motion, edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness, [or] instability.  The examiner noted that "[t]he effect of the condition on the claimant's daily activity is ambulation and exercise, as tolerated, no restrictions."

The Veteran was afforded a second VA examination in July 2011, at which time he complained of severe intermittent pain in the arches of the feet, bilaterally.  He  described his arch pain as occurring with weightbearing and resolving with rest.  He endorsed pain at 7/10 after walking greater than 200 feet or standing greater than 30 minutes.  He also reported stiffness in his feet each morning lasting about 30 minutes.  He denied any redness, but noted some limited swelling during flare-ups of pain occurring when standing or walking.  The Veteran reported that the arch pain limited his ability to show property while working as a realtor from 1999 to 2011.  The Veteran indicated that he discontinued the use of prescribed orthotics, but is currently using non-prescription arch supports.  He denied the use of other assistive devices for ambulation.  Upon physical examination, the VA examiner noted dried blisters on the medial arch of the right and left feet.  He diagnosed the Veteran with flat foot, bilaterally, as well as, recurrent plantar fasciitis, bilaterally, and posterior tibial tendonitis."  He further noted that "[r]epetitive load on a biomechanically unstable flatfoot has been recognized as inciting soft tissue inflammation such as plantar fasciitis and posterior tibial tendonitis."

Pursuant to the December 2011 Board Remand, the Veteran was afforded a third VA examination in January 2012.  He described his bilateral foot pain as chronic and occurring beneath the arches of his feet, bilaterally, extending beneath the ball of the great toe joint and proximally towards the heel.  He reported the pain as intermittent with both feet equally affected.  He graded the pain as 9/10 occurring with initial weightbearing in the morning or after prolonged standing or walking greater than 30 minutes.  The examiner noted that the Veteran was currently unemployed as his most recent job as a security guard was discontinued in May 2011.  

Upon physical examination, the VA examiner noted that the Veteran's left foot exhibited "[p]ain on palpation distal 1/2 medial slip of plantar fascia, slight discomfort palpation insertion [posterior tibial] tendon at medial navicular, [and] flattened medial arch with prominence talonavicular joint."  The examiner further noted that the "Achilles tendon is aligned with the posterior calcaneus and no pain on palpation, mild reducible contractures deviated with prominent medial eminence at 1st metatarsophalangeal joint without underlap of adjacent second toe."  With respect to the right foot, the examiner noted "[p]ain on palpation middle 1/3 medial slip plantar fascia, no pain on palpation [posterior tibial] tendon, [and] flattened medial arch with prominence talonavicular joint . . . The right Achilles tendon is aligned with the posterior calcaneus and no pain on palpation, mild reducible flexion contractures proximal interphalangeal joints 2nd and 3rd toes, great toe laterally deviated with prominent medial eminence at 1st metatarsophalangeal joint."  Upon weight bearing, the examiner noted no pain in either foot, although the Veteran was unable to perform heel raises in the left foot due to rearfoot pain.  The Veteran's gait exhibited "[n]o limp, normal angle of gait, no hip or shoulder drop."

The examiner noted that no spasming of the Achilles tendon was demonstrated upon examination.  The examiner further concluded that the "significant calcaneal eversion and medial arch collapse are more likely than not related to [the] Veteran's pes planus.  The pain along the medial slip of the plantar fascia, swelling along the left medial ankle, and callosities along the medial hallux are more likely than not related to the Veteran's pes planus."  The examiner additionally described the Veteran's interrelated foot symptomatology, "[t]he residuals of posterior tibial tendonitis include weakness when inverting the foot, recurrent medial ankle edema, and pain along the medial ankle/arch with weightbearing activity.  The residuals of plantar fasciitis include pain along the length of the medial arch/heel, pain/stiffness with initial weightbearing, and pain with prolonged standing/walking."

Based on a review of the evidence, the Board finds that a 50 percent rating for bilateral pes planus is warranted under Diagnostic Code 5276 because the symptoms associated with the Veteran's disability more nearly approximate the criteria associated with pronounced flatfoot.  Specifically, marked pronation of both feet and tenderness and pain of the plantar surfaces of the feet were shown on examination in January 2012.  Finally, while the Veteran has at times used orthotics, the evidence of record shows that said orthotics had little effect on his foot symptomatology.

The Board recognizes that there is no evidence of severe spasm of the Achilles tendon, nor has the Veteran contended to have experienced spasms.  Crucially, as indicated above, the criteria under Diagnostic Code 5276 are not conjunctive and, as such, it is not required that all of the manifestations that are listed be shown.  See Melson, supra.  In light of the above, and with resolution of any doubt in the Veteran's favor, the Board concludes that the Veteran's symptoms, throughout the appeal period, more nearly approximate the criteria for a 50 percent rating under the criteria of Diagnostic Code 5276, the highest schedular evaluation for flatfoot.

The Board also finds that evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards.  See 38 C.F.R. § 3.321 (2012).  The current evidence of record does not demonstrate that Veteran's bilateral pes planus has resulted in frequent periods of hospitalization or in marked interference with employment.  Id.

The Veteran is not currently working as his job was recently discontinued.  See VA examination report dated January 2012.  Although the Veteran has previously indicated that his bilateral pes planus negatively impacted his job as a security guard (see the VA Form 9 dated October 2009), the Board notes that the rating schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations.  38 U.S.C.A. § 1155.  "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  38 C.F.R. § 4.1 (2012).  Here, the very problems reported by the Veteran are contemplated by the criteria discussed above.  38 C.F.R. §§ 4.10, 4.40.  Thus, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted.

Further, although the Veteran has submitted evidence of a medical disability and made a claim for a higher rating, he has not submitted evidence of unemployability or claimed to be unemployable as a result of his service-connected bilateral pes planus.  As indicated above, the January 2012 VA examiner noted that the Veteran's job had recently ended.  However, neither the Veteran nor his representative has indicated that this was in any way caused by the service-connected bilateral pes planus.  Therefore, the Board finds that the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability has not been raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).


ORDER

An increased disability rating of 50 percent is granted for the service-connected bilateral pes planus from August 11, 2008.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs