Citation Nr: 1304863 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-20 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for bilateral pes planus with calluses (also claimed as multiple foot problems and arthritis) greater than 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from June 1956 to June 1959, September 1959 to September 1962, November 1962 to November 1968, and January 1971 to February 1979. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida, which continued the 10 percent rating for bilateral pes planus with calluses (also claimed as multiple foot problems and arthritis). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT Bilateral pes planus with calluses is manifested by no greater than moderate impairment. CONCLUSIONS OF LAW The criteria for a rating greater than 10 for service-connected bilateral pes planus with calluses are not met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 3.321 , 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. § 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Diagnostic Code 5276 provides that a 0 percent evaluation is assigned for mild symptoms which are relieved by a built up shoe or arch support. A 10 percent evaluation is assigned for moderate impairment, marked by weight-bearing in a line over or medial to the great toe, inward bowing of the Achilles tendon, and pain on manipulation and use of the feet; the 10 percent rating applies whether the condition is bilateral or unilateral. Important for this case, for severe impairment, with objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, indications of swelling on use, and characteristic callosities, a 20 percent evaluation is assigned for a unilateral condition and a 30 percent for a bilateral condition. When the disability is pronounced, manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, and is not improved by orthopedic shoes or appliances, a 30 percent evaluation for unilateral disability is assigned, and a 50 percent evaluation is applied for bilateral disability. 38 C.F.R. § 4.71a , Code 5276. The Veteran contends that his bilateral flat foot condition has gotten worse, specifically his left foot is worse and has developed arthritis. In January 2009 a VA examination of the feet was conducted. The Veteran reported that his bilateral pes planus had its onset during service. He reported having surgery on both feet in 1977 at Fort Benning, Georgia. Currently he sees a podiatrist every three months for callus removal and nail treatment. He wears inserts in his shoes which help. He complained of some weakness and fatigue, and pain in the feet with prolonged standing and walking. Upon physical examination the Veteran was fully ambulatory with a normal gait. Examination of the right foot revealed: evidence of pes planus; no gross deformity, swelling or tenderness; no hallux valgus or bunion formation; a definite loss of the instep; callus along the metatarsals; normal Achilles alignment with weightbearing; no hammer toes, no claw toes; no tenderness, edema, erythema or tissue loss. The right foot had a normal metatarsal phalangeal joint, proximal interphalangeal joint and distal interphalangeal joint function. Examination of the left foot revealed: evidence of pes planus, no hallux valgus, normal Achilles alignment with weightbearing, some callus formation on the plantar surface at the metatarsal heads; no hammer toes, no claw toes, tenderness, edema, erythema or tissue loss. The left foot had normal metatarsal phalangeal joint, proximal interphalangeal joint and distal interphalangeal joint function in all digits. Repetitive range of motion three times did not reveal any pain, fatigue, weakness or lack of endurance or incoordination in the left or right foot. An x-ray of both feet revealed orthopedic surgery in the distal right tibia and fibula. The Veteran has received private treatment for his various foot problems, including pes planus. April 2008 treatment records from Dr. JS note the Veteran's complaints of left ankle pain including pain with palpation, and that radiographs were negative from fracture and there was no crepitus with range of motion. A February 2009 x-ray of both feet found no acute process or change, no acute fracture but standing laterals suggested mild flattening of the arches, providing evidence overall against this claim. In November 2007 and December 2010 the Veteran sought treatment at the Naval hospital for complaints of left leg pain but no objective findings were made and the Veteran was instructed to rest, providing more evidence against the claim that the condition is "severe". At a March 2009 VA podiatry consult the Veteran reported walking without appropriate shoe gear to protect the feet. Objective evaluation found neurological vascula status to be intact (NVSI), moderate arch noted in non weightbearing, metatarsal heads were palpable with little fat pad, muscle strength and range of motion were within normal limits. The assessment was bilateral lower extremity edema and bilateral ankle ligamentous laxity and the podiatrist recommended cork bottom sandals, providing more evidence against this claim. At an October 2012 VA podiatry consult the podiatrist found muscular unremarkable to both lower extremities, moderate hammertoe deformity both feet, and loss of mid arch when foot loaded, providing yet more evidence against this claim. The Veteran has reported bilateral foot pain. He is currently assigned a 10 percent rating for moderate pes planus, which encompasses pain on manipulation and use of the feet. Although the Veteran is competent to report symptoms that he experiences through his senses, he is not competent to identify a specific level of disability of the disorder according to the appropriate diagnostic codes. Layno v. Brown, 6 Vet. App. 465, 469 (1994). There is no evidence of severe pes planus as there is no objective evidence of marked deformity, such as pronation or abduction, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. The Veteran had a normal gait upon examination and there is no objective evidence a deformity such as pronation or abduction. The Veteran reported pain in the feet with prolonged standing but this is not accentuated pain. There was no pain upon repetitive motion. There was no consistent report of foot pain despite tri-monthly private treatment of his feet. The Veteran was noted to have swelling in the lower extremities on one occasion, but this is not an indication of swelling on use of the feet, nor has the Veteran reported any such swelling. The Veteran has calluses which are treated as needed, however there were no severe pes planus characteristic callosities. As there is no evidence of severe pes planus, unilateral or bilateral, a higher rating is not warranted. In this regard, it is important for the Veteran to understand that the Board would not dispute the fact that this condition may have, in fact, become "worse". However, even if the condition has become worse, this does not support a finding that the condition now meets the next higher criteria. Simply stated, while the condition may be "worse", extensive medical evidence, as cited above, clearly reveals that it is not "severe". The medical evidence cited above, overall, outweighs the Veteran's lay statements that a high evaluation is warranted. Extraschedular Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The evidence demonstrates that the schedular criteria reasonably describes the Veteran's disability level and referral for consideration of an extraschedular evaluation is not warranted here Notice and Assistance 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) (2012). An October 2008 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Board has also reviewed the Veteran's "Virtual VA" file. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). A VA examination was conducted in January 2009; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examination was adequate as the examiner evaluated the Veteran's current disability level and provided findings to allow for proper application of the rating criteria.) There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). ORDER An increased rating for bilateral pes planus with calluses (also claimed as multiple foot problems and arthritis) greater than 10 percent disabling is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs