Citation Nr: 1303961 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 08-09 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased evaluation for pes planus, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran served on active duty from July 1943 to March 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. The Veteran underwent a left below the knee amputation in 1989, secondary to diabetes mellitus. 2. Prior to undergoing right below the knee amputation in August 2008, the Veteran's service-connected pes planus is not shown to be manifested by marked deformity (pronation, abduction), accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet or characteristic callosities. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the Veteran's service-connected pes planus have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's September 2006 letter to the Veteran satisfied the duty to notify provisions relating to the Veteran's claim at issue herein. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Additionally, the September 2006 letter to the Veteran notified him that he must submit, or request that VA obtain, evidence of the worsening of his disabilities and the different types of evidence available to substantiate his claim for a higher rating. Moreover, the letter informed him of the requirements to obtain higher ratings and notified him of the need to submit evidence of how such worsening effected his employment. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275-82 (2009). For these reasons, the Board finds that the content requirements of the notice VA is to provide have been met and no further development is required regarding the duty to notify. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the Veteran has been satisfied in this case. The RO has obtained the Veteran's service treatment records and his identified VA treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has not been afforded a VA examination. However, he was scheduled for a VA examination and failed to report. It was subsequently determined that he was confined to a nursing home when the examination was scheduled due to a right foot ulcer. He underwent an amputation of the right foot, thus another examination was not scheduled. Therefore, a remand for an examination at this time is not necessary as the Veteran as undergone a right below the knee amputation during the course of this appeal. As such, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). The Veteran's current claim for an increased rating for pes planus was received in June 2006. While the claim for an increased rating for pes planus was pending, the Veteran underwent a right leg below the knee amputation. He had previously undergone a left leg below the knee amputation in 1989. Accordingly, the Board is necessarily limited to reviewing this claim based on the evidence of record during the current appeal period prior to the Veteran's right below the knee amputation. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. Service connection for pes planus was granted in April 1946, and a 10 percent disability rating was assigned. In August 1948, a noncompensable evaluation for pes planus was assigned. In 1989, the underwent a left below the knee amputation. The noncompensable evaluation continued until November 1994, when a 10 percent evaluation was assigned, which has remained in effect since that time. The Veteran's service-connected pes planus is currently rated 10 percent disabling under Diagnostic Code 5276. 38 C.F.R. § 4.71a. Under Diagnostic Code 5276, a 10 percent rating is warranted for moderate pes planus where the weight-bearing lines are over or medial to the great toes and there is inward bowing of the tendo achillis and pain on manipulation and use of the feet. A 20 percent evaluation is warranted for severe unilateral pes planus manifested by objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet, and characteristic callosities. A 30 percent rating is warranted for pronounced unilateral acquired pes planus manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation, which is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board has reviewed the evidence of record for the period prior to the loss of the Veteran's right foot in August 2008. VA records show continuing treatment for right foot diabetic ulcer beginning in 2006,with continuing wound treatment until August 2008, when the Veteran underwent a right leg below the knee amputation due to right foot gangrene, with infection extending through the ankle joint and self disarticulation, with leukocytosis and obvious soft tissue infection. There is no evidence in the file during the appeal period relating to the pes planus. The evidence of record prior to the Veteran's loss of his right foot does not show that his service-connected pes planus was manifested by marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet and characteristic callosities. Additionally, the evidence did not show that the service-connected pes planus was manifested by extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation, which was not improved by orthopedic shoes or appliances. As such, the medical records do not show that the criteria for a higher rating based on his pes planus have been met. Symptoms associated with his diabetic foot ulcer and complications thereof are not for consideration in rating pes planus. The Board has also considered the Veteran's lay statements that his foot disability was worse. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In this case, the Veteran's statements are competent evidence as to his symptoms. because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the symptoms the Veteran refers to in stating that his right foot symptoms were worse, were due to the Veteran's nonservice-connected right foot diabetic ulcer, which, as noted above, is not for consideration in this matter. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture due to his service-connected pes planus was not so unusual or exceptional in nature as to render the assigned 10 percent rating inadequate. The Veteran's service-connected pes planus was evaluated as acquired flatfoot, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. to 38 C.F.R. § 4.71a, Diagnostic Code 5276. Prior to undergoing a right leg below the knee amputation in August 2008, the Veteran's service-connected pes planus was not shown to be manifested by marked deformity (pronation, abduction), accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet or characteristic callosities due to his service-connected pes planus. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the disability picture shown represented no more than a 10 percent disability rating. The criteria for a 10 percent rating reasonably described the Veteran's disability level and symptomatology. Consequently, the Board concludes that the schedular evaluation was adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.71a, Diagnostic Code 5276; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable due to his pes planus. Therefore, a claim of entitlement to a total disability rating based on individual unemployability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board has reviewed the entire record and finds that the evidence does not reflect that a rating lesser or greater than the 10 percent rating assigned for the Veteran's service-connected pes planus was shown during the pertinent time period of this appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also 38 C.F.R. § 3.344 (2012). Thus, the Board has concluded that staged ratings for this disorder are not warranted. Accordingly, the Board concludes that the preponderance of the evidence of record is against the claim for an increased rating for pes planus. Accordingly, the benefit of the doubt doctrine is not for application, and a rating in excess of 10 percent for pes planus is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased evaluation for pes planus, currently evaluated as 10 percent disabling, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs