Citation Nr: 1301843	
Decision Date: 01/16/13    Archive Date: 01/23/13

DOCKET NO.  06-36 886	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 30 percent for bilateral pes planus. 

2.  Entitlement to service connection for a psychiatric disorder.

3.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	John R. Worman, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Tiffany Berry, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from October 1966 to January 1967. 

This case comes before the Board of Veterans' Appeals (Board) from November 2005 and October 2011 rating decisions of the Waco, Texas, VA Regional Office (RO).  In July 2009, the Veteran testified at a hearing before the undersigned.  In March 2010, the Board remanded part of the appeal for additional development.  

The claim of service connection for a psychiatric disorder and the claim for a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The most competent and credible evidence of record shows that the Veteran's service connected bilateral pes planus is manifested by adverse symptomatology that equates to pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, which is not improved by orthopedic shoes or appliances at all times during the pendency of the appeal.



CONCLUSION OF LAW

The criteria for a 50 percent rating, but no higher, for the Veteran's bilateral pes planus are met at all times during the pendency of the appeal.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.71a, Diagnostic Code (DC) 5276 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  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; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits.  

The Veteran has appealed the propriety of the initially assigned rating from the original grant of service connection for bilateral pes planus.  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).  In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  

In this case, the Veteran's claim for service connection for his bilateral pes planus disability was granted and an initial rating was assigned in the November 2005 rating decision on appeal.  Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Furthermore, the Board finds that even if VA had a duty to provide additional notice and failed to do so that this lack of 38 U.S.C.A. § 5103(a) notice is harmless error because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the June 2005 letter as well as the rating decision, the statement of the case, the supplemental statements of the case, and the Board remand.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records and post-service records from the Social Security Administration (SSA), the Central Texas and North Texas Healthcare Systems including from the Temple and Dallas VA Medical Centers as well as all identified and available private treatment records in substantial compliance with the Board's March 2010 remand directions.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).  The Veteran has not identified any additional outstanding records that have not been requested or obtained.  

The Veteran was initially afforded a VA examination in October 2005 in connection with his claims for service connection for the bilateral pes planus.  He was subsequently reexamined in November 2008.  In June 2010, the Veteran was again reexamined as a consequence of a March 2010 Board remand for an additional VA examination to determine the current severity of his foot disability and its impact on his ability to work.  Moreover, the Board finds that the June 2010 examination is adequate in order to evaluate the Veteran's service-connected bilateral pes planus as well as substantially complies with the March 2010 Remand instructions as it includes an interview with the Veteran, a review of the record, and a full objective physical examination addressing the relevant rating criteria.  Id.  Furthermore, since that June 2010 examination neither the Veteran nor his attorney has alleged the examination was inadequate or that the Veteran's disability has increased in severity.  Therefore, the Board finds that no further examination is needed to adjudicate the appeal.

Finally, the Veteran provided relevant testimony during the hearing before the undersigned in July 2009.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Here, the undersigned Acting Veterans Law Judge identified the issues on appeal and solicited the Veteran to identify evidence relevant to the claim.  The Veteran described the impact of the disability on his activities of daily living.  At the Board hearing, his testimony revealed a possible worsening of the disability since the last VA examination in November 2008 and the Board sought additional development to rectify the deficiency in its March 2010 remand directive.  The Board also obtained updated treatment records and obtained his SSA records.  As such, the Board finds that the hearing discussion did not reveal any evidence that might be available, but was not associated with the claims file, other than medical evidence that was to be procured. 

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, the Board may proceed to the merits of his claim.

In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's record including those found in virtual VA.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims files shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

II.  The Claim

Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.  The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  Where the appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  

The Veteran is currently in receipt of a 30 percent evaluation for his service-connected bilateral pes planus under DC 5276.  DC 5276 provides ratings for acquired flatfoot.  Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 30 percent disabling for a bilateral disability.  Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 50 percent disabling for a bilateral disability.  38 C.F.R. § 4.71a. 

During his initial October 2005 VA examination, the Veteran also reported constant pain and examination revealed tenderness of the plantar aspect of the feet.

Thereafter, during the November 2008 VA examination, to reassess the severity of this disability, the Veteran reported bilateral foot pain, inability to ambulate, use of corrective shoes and braces, and assistive devices.  The Veteran had shoe inserts bilaterally.  On examination, the Veteran had bilateral foot pain with standing as well as with range of motion studies of the feet, tenderness in the arches bilaterally as well as over the dorsum of the left foot, pain with manipulation of the tendoachilles bilaterally, and flattening of the arches bilaterally.   

At the post-remand June 2010 VA examination, the Veteran again reported constant pain.  The examiner noted the use of corrective shoes, brace, one cane, and a wheelchair.  Upon objective physical examination, it was noted the Veteran has markedly pronated flat feet with tenderness on palpation of the arches.  The examiner also noted painful motion, calluses, tenderness, instability, and weakness.  Thereafter, the examiner concluded that the Veteran has pronounced pes planus, manifested by marked pronation and marked tenderness of the plantar surfaces of the feet.  No overt spasm was noted in the Achilles tendon bilaterally.  Concerning the orthopedic shoes, the examiner stated that the Veteran's problems are significant even with these items, but would be even worse without them.  

The VA and private treatment records in the claims file do not provide contrary results to those obtained at the June 2010 VA compensation examination.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).  In fact, a May 2012 VA treatment record indicated the Veteran required new orthopedic inserts as a result of his service-connected bilateral pes planus.  

Therefore, the Board finds that the evidence, both positive and negative, as to whether the Veteran met the criteria for a 50 percent rating for his bilateral pes planus at all times during the pendency of the appeal is at least in equipoise.  Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board concludes the symptoms attributed to his service-connected bilateral pes planus more nearly approximate the criteria for a 50 percent rating under DC 5276 when considering the Court's holding in DeLuca v. Brown, 8 Vet. App. 202 (1995) and 38 C.F.R. § 4.40, 4.45 (2012).  38 C.F.R. § 4.71a.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

In this regard, the Board has considered whether staged ratings are appropriate for the Veteran's service-connected bilateral pes planus.  However, the Board finds that his symptomatology has been stable throughout the appeal period.  Therefore, the Board finds that the 50 percent rating is warranted throughout the period of time during which his claim has been pending.  Fenderson, supra.

A 50 percent disability rating is the maximum schedular rating that can be assigned under DC 5276 and under any other DC addressing the feet (see 38 C.F.R. § 4.71a, Diagnostic Codes 5277 to 5284 (2012)).  Moreover, the Board does not find that there are any other DCs that it should consider to see if the Veteran is entitled to a schedular rating higher than 50 percent for his bilateral foot disability or to receive separate compensable ratings.  In this regard, the Board notes that the Veteran is service connected for bilateral pes planus and his disability is specifically contemplated by and ratable under DC 5276.  See 38 C.F.R. § 4.71a.  Therefore, the Board finds that it need not attempt to rate his disability under another less appropriate DC.  See Butts v. Brown, 5 Vet. App. 532 (1993) (holding that the Board's choice of a diagnostic code should be upheld so long as it is supported by explanation and evidence.).  

In reaching the above conclusion, the Board has considered the Veteran's statements with regard to the severity of his bilateral pes planus and associated symptoms.  In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing chronic pain or difficulty ambulating.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran has provided lay evidence with respect to the presence of pain and problems ambulating as well as the severity of such during his three VA examinations and during his July 2009 Board hearing.  He is competent to provide such statements and the Board finds that the Veteran's statements are credible.  Therefore, in reaching the above conclusion the Board has taken into account the Veteran's competent and credible claims about what he can see and feel.  See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). 

Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1).  

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.  Id.

With respect to the first prong of Thun, the Board finds that the symptoms associated with the Veteran's bilateral pes planus, as described above, are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describe his disabilities.  His complaints of pain and difficulty ambulating are contemplated by the schedular rating criteria of DC 5276.  

The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms."  Specifically, there simply is no objective evidence that his service connected disability, acting alone, has resulted in frequent periods of hospitalization or in marked interference with employment.  See Bagwell v. Brown, 9 Vet. App. 337 (1996).  In fact, the June 2010 VA examiner specifically opined that his pes planus acting alone did not prevent employment.  Therefore, the Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria.

In short, there is nothing in the record to indicate that this service-connected disability causes impairment with employment over and above that which is contemplated in the assigned schedular rating.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired).  The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted,

Lastly, the Board finds that as the preponderance of the evidence is against the claim for a rating in excess of 50 percent for pes planus, the benefit-of-the-doubt rule does not apply.  38 U.S.C.A. § 5107(b); Gilbert, supra. 


ORDER

A rating of 50 percent, but no higher, for the Veteran's bilateral pes planus is granted at all times during the pendency of the appeal, subject to the statutory and regulatory provisions governing the payment of monetary benefits.


REMAND

As to the claim of service connection for a psychiatric disorder, in July 2012 the Veteran filed a notice of disagreement with the October 2011 rating decision that denied his claim.  See 38 C.F.R. § 20.201 (2012); Gallegos v. Principi, 283 F.3d 1309, 1314 (Fed. Cir. 2002).  No further action was taken by RO.  Therefore, the Board finds that this issue must be remanded for a statement of the case (SOC).  See Manlincon v. West, 12 Vet. App. 238 (1999).

As to the TDIU claim, the Board finds that it is inextricably intertwined with the Veteran's claim of service connection for a psychiatric disorder.  Therefore, the Board finds that adjudication of the TDIU claim must be deferred pending completion of the above development as to the psychiatric disorder claim.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). 

The record shows that that the Veteran receives treatment through the Central Texas and North Texas Healthcare Systems including from the Temple and Dallas VA Medical Centers.  The record also shows that medical records of the Veteran can be found in CAPRI.  However, a review of the record on appeal does not reveal his post-September 2011 treatment records from the Central Texas Healthcare Systems, post-May 2012 treatment from the North Texas Healthcare Systems; or all of his CAPRI records including all of the October 2004 to September 2010 records identified as being from the Temple VA Medical Center.  Therefore, while the appeal is remand status, these records should be obtained and associated with the claims file.  See 38 U.S.C.A. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records).

Accordingly, these issues are REMANDED to the RO/AMC for the following actions:

1.  The RO/AMC should obtain and associate with the claims file the Veteran's post-September 2011 treatment records from the Central Texas Healthcare Systems, post-May 2012 treatment record from the North Texas Healthcare Systems; and all of his CAPRI records including the October 2004 to September 2010 records identified as being from the Temple VA Medical Center.  All actions to obtain the requested records should be documented fully in the claims file.

2.  The RO/AMC should issue to the Veteran and his representative a SOC as to the claim of service connection for a psychiatric disorder.  If the Veteran files a timely substantive appeal, this issue should be returned for review by the Board. 

3.  After the time to appeal the claim of service connection for a psychiatric disorder has run, the RO/AMC should readjudicate the claim for a TDIU.  If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC).  A reasonable period of time should be allowed for response before the appeal is returned to the Board.

The appellant 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).

These claims must be afforded expeditious treatment.  The law requires that all 

claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).




____________________________________________
Neil T. Werner
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs