Citation Nr: 1306955 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 07-05 257 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected pes planus. 2. Entitlement to an initial 10 percent rating for bilateral pes planus for the period from August 22, 2005 through August 1, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from November 1982 to April 1983, with subsequent reserve service, to include a period of special active duty for training (SADT) from April 1988 to November 8, 1988. This appeal to the Board of Veterans' Appeals (Board) arose from May 2006 and October 2010 rating decisions. In the March 2006 rating decision, the RO, inter alia, denied service connection for low back disability. In June 2006, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later in February 2007. In August 2006, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; a transcript of that hearing is of record. In January 2009, the Board, inter alia, remanded the claim for service connection for a low back disability to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After accomplishing further action, the AMC continued to deny the claim (as reflected in an October 2009 supplemental SOC (SSOC)) and returned the matter to the Board. In March 2010, the undersigned Veterans Law Judge (VLJ) granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2010). In April 2010, the Board, again, remanded the claim for service connection for a low back disability, to the RO, via the AMC, for further action, to include additional development of the evidence. After accomplishing further action, the AMC continued to deny the claim (as reflected in an October 2010 SSOC) and returned the matter to the Board for further appellate consideration. An October 2010 RO rating decision awarded service connection for bilateral pes planus, and assigned an initial noncompensable rating from August 22, 2005 to August 1, 2010, and an initial 10 percent rating effective August 2, 2010. In November 2010, the Veteran filed an NOD on an issue of "[e]ntitlement to a 10 percent evaluation for pes planus effective 8/22/2005." In March 2011, the Board requested an additional medical opinion in this case from the Veterans Health Administration (VHA). The opinion was received in June 2011, and the Board requested an addendum opinion in August 2011. An addendum opinion was obtained and, in September 2011, the Veteran and his representative were sent a copy of the opinions and allowed 60 days to submit additional evidence and/or argument. In November 2011, the Veteran submitted additional medical evidence directly to the Board. In December 2011, the Board, inter alia, remanded the claim for service connection for a low back disability to the RO, via the AMC, for further action, to include additional development of the evidence. In January 2012, the RO issued an SOC on an issue phrased as entitlement to an earlier effective date than August 2, 2010 for the grant of a 10 percent evaluation for pes planus. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later in February 2012. Because the Veteran has disagreed with the initial rating assigned following the award of service connection for pes planus, the Board has characterized this claim in light of Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). After accomplishing further action on the Board's May 2012 remand directives, the AMC continued to deny the service connection claim for a low back disability (as reflected in a July 2012 SSOC) and returned the matter to the Board for further appellate consideration. As a final preliminary matter, the Board notes that in a July 2011rating decision, the RO denied a claim of entitlement to basic eligibility for VA home loan guaranty benefits. The Veteran filed an NOD in November 2011. In December 2011, the Board remanded this issue for the sole purpose of RO issuance an SOC to the Veteran, to allow him to perfect his appeal if he so desired. See Manlicon v. West, 12 Vet. App. 238, 240-41 (1999). The RO issued an SOC on this issue in May 2012. The record does not reflect that the Veteran perfected his appeal to the Board by timely filing a substantive appeal. As such, the Board has no jurisdiction over this claim. See 38 C.F.R. § 20.302(b). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate each matter herein decided has been accomplished. 2. Pertinent evidence on the question of whether the Veteran's currently diagnosed degenerative disc disease of the lumbosacral spine results from injury during his period of SADT from April to November 1988 is, at least, in relative equipoise. 3. The collective lay and medical evidence indicates that the Veteran's bilateral pes planus deformity has been manifested by collapse to the medial arch and too-many-toes sign, medial talar bulge on stance and eversion of the heels, plantar fasciitis, metatarsalgia and pain on use of the feet since the August 22, 2005 effective date of the award of service connection. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for direct service connection for degenerative disc disease of the lumbosacral spine are met . U.S.C.A. §§ 101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for an initial 10 percent rating for bilateral pes planus, for the period from August 22, 2005 through August 1, 2010, are met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code (DC) 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the award of service connection for low back disability, as well as the favorable disposition of the claim for a higher initial rating for bilateral pes planus to the full extent sought, the Board finds that all notification and development actions needed to fairly adjudicate each claim on appeal has been accomplished. With respect to the bilateral pes planus claim, an RO rating decision dated October 2011 awarded service connection for bilateral pes planus, and assigned an initial noncompensable rating from August 22, 2005 to August 1, 2010, and an initial 10 percent rating effective from August 2, 2010. In November 2010, the Veteran filed an NOD with respect to an issue phrased as "[e]ntitlement to a 10 percent evaluation for pes planus effective 8/22/2005." The Veteran also filed a service connection claim for degenerative arthritis of the feet as secondary to service-connected pes planus. A February 2011 RO rating decision granted service connection for degenerative joint disease of the left and right talonavicular joints, and assigned initial 10 percent ratings for each joint. The Veteran did not appeal this determination. In January 2012, the RO furnished the Veteran and his representative an SOC on an issue phrased as "[e]ntitlement to an earlier effective date than August 2, 2010 for the grant of a 10 percent evaluation for bilateral pes planus." In February 2012, the Veteran submitted a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) which did not identify any errors of fact or law with respect to the pes planus rating. In December 2012, the Veteran's representative submitted a Post-Remand Brief which identified the issue as "[d]id the agency of original jurisdiction (AOJ) err when it denied an effective date earlier than August 2, 2010 for the assignment of an increased disability evaluation of bilateral pes planus." In that brief, the Veteran's representative argued that the record demonstrated that bilateral pes planus was at a compensable degree since the filing of the claim in 2005. The Court has held that, on a claim for original or increased disability rating, a claimant will generally be presumed to be seeking maximum benefit allowed by law and regulation and, thus, such claim remains in controversy where less than maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 39 (1993). However, the Court cited the case of Hamilton v. Brown, 4 Vet. App. 528 (1993) for the proposition that a claimant may limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law. Id. at 39. To do so, the Court indicated that a claimant would have to clearly express an intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition. Here, the Veteran has expressed his belief that his bilateral pes planus disability should be rated at a 10 percent level since the date he filed his service connection claim in 2005. The Veteran and his representative have clearly stated the issue on appeal as entitlement to an initial 10 percent rating for bilateral pes planus for the time period prior to August 2, 2010. There has been no argument that a rating greater than 10 percent is warranted for any time. Thus, consistent with AB and Hamilton, the Board finds that the Veteran has limited his appeal to the issue of entitlement to an initial 10 percent rating for bilateral pes planus for the time period from August 22, 2005 to August 1, 2010. As this issue is also granted in full, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. II. Low back disability The Veteran seeks to establish his entitlement to service connection for low back disability. He reports a low back injury during a period of SADT from April to November 1988. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997). Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases, such as arthritis, may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board observes that, with respect to the Veteran's Reserve service, the applicable laws and regulations permit service connection only for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). See 38 U.S.C.A. § 101(22), (24); 38 C.F.R. § 3.6 The presumption of soundness under 38 U.S.C.A. § 1111 does not apply when a claimant, veteran or otherwise, has not been examined contemporaneous to entering a period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). The presumption pertaining to chronic diseases under 38 U.S.C.A. § 1112 and the presumption of aggravation under 38 U.S.C.A. § 1153 do not apply to ACDUTRA or INACDUTRA service. Id. See also Acciola v. Peake, 22 Vet. App. 320 (2008); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith, 24 Vet. App. at 47. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of ACDUTRA service alone. Id. With respect to a claim for aggravation of a preexisting condition during ACDUTRA, the claimant must provide direct evidence both that a worsening of the condition occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA. Smith, 24 Vet. App. at 48. The Veteran has also raised a theory that his low back disability is caused and or aggravated by service-connected bilateral pes planus and knee disabilities. Under 38 C.F.R. § 3.310(a), service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 4m 53-569 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Veteran served on active duty from November 1982 to April 1983. His service treatment records (STRs) reflect treatment for bilateral knee and foot pain. There is no clear documentation of treatment or injury for the low back. However, a January 26, 1983 Individual Sick Slip reported a "back problem" with a reference that the Veteran may try to take the physical training test. An April 1983 Entrance Physical Standards Board (EPSBD) proceeding found that the Veteran was physically unfit due to osteochondritis of the left lateral femoral condyle which existed prior to service. Notably, a June 2011 VHA opinion reflects that the osteochondritis involved the right lateral femoral condyle. A February 1985 Patient Questionnaire for Stringfellow Memorial Hospital included the Veteran's report of weakness, numbness or tingling in his left leg after standing for prolonged periods of time. He underwent surgery for plantar flex of the left foot 2nd metatarsal. In January 1987, the Veteran underwent a reserve 4-year update examination. At that time, the Veteran denied a history of recurrent back pain and did not report a history of low back injury. Physical examination indicated a normal clinical evaluation of the spine. The Veteran entered a period of SADT in April 1988. An August 3, 1988 STR reflects the Veteran's report of pain in both knees with a raw and sore left foot. He described being unable to wear boots. On examination, the assessment was overuse syndrome. August 13, 1988 STRS for evaluation of the Veteran's report of "pain" reflect a history of the Veteran falling of a ration truck 21/2 months previous. The Veteran reported pain which was on and off and then falling in a bathtub 2-3 weeks prior. His pain bothered him when standing for a long-time or playing basketball, to the point where he could not walk the next day. He had occasional pain in the back of the knee. This assessment refers to an evaluation of the left knee only. An October 31, 1988 VA clinic record includes the Veteran's report of left knee pain since falling off a truck 2 1/2 months previous. There was no mention of back pain. A November 3, 1988 only referred to increased knee pain following the August accident. A November 7, 1988 U.S. Army Reserve Letter, which references an August 7, 1988 consultation report submitted by the Veteran (which is not associated with the claims file), found that the Veteran was temporarily medically disqualified from service due to left knee problems and fractured ribs. A November 3, 1988 U.S. Army Reserve Letter reflects an effective discharge date of November 8, 1988. A November 18, 1988 VA clinic record reflects the Veteran's complaint of continued left knee pain with a "pins & needles" sensation for approximately one week. He was prescribed Naprosyn and Flexeril. The report of a November 29, 1988 electromyography (EMG) study conducted at Northeast Alabama Regional Medical Center references the Veteran's report of left leg pain which had "been worse" over the past two weeks. He reported a history of having fallen off an Army truck on July 12, 1988, while on reserve duty, and having a second fall shortly thereafter. He had been treated with Motrin, which he did not tolerate very well. He had experienced increased left leg pain in the past two weeks around the lateral and anterior side of the left leg and knee. He described left leg tingling and a sensation of going to sleep from the knee down. His symptoms were exacerbated with activity, and any pressure on the leg in bed seemed to hurt. He had been on Flexeril which helped and, prior to that, he had just laid flat on his back. In the past several days, the Veteran had experienced a burning sensation in the bottom of his left foot near the heel surface. Examination was significant for discomfort with left lateral bending, tenderness to palpation over the midline L4-5 and L5-S1 intervertebral space, 1+ deep tendon reflexes, sensory decrease above the knee distally in all areas tested, and some weakness over the left hamstrings, great toe extensor and extensor digitorium brevis. Impressions following the EMG study were left tarsal tunnel syndrome, and left L4-5 radiculopathy. A December 1988 clinic note from Anniston Orthopedics documents that there was minimal lumbar spasm and a 20 percent reduction of motion in all directions. An x-ray was interpreted as normal. The examiner opined that the Veteran probably had a lumbar sprain, and might have a mild disc syndrome. A December 1988 medical certificate from Anniston Orthopedics provides a diagnosis of lumbar disc syndrome. The examiner reported that x-ray examination of the lumbar spine was "unremarkable." Thereafter, private chiropractor records dated in October 2001 reflect the Veteran's report of a constant, burning pain in the lower back with pain in both legs. He previously had a history of pain only involving the left leg. He described the onset of lower back pain after two recent lifting injuries. Examination indicated impressions of cervical strain/sprain, cervical disc protrusion and lumbar sprain/strain. The examiner commented that the Veteran appeared to aggravate a pre-existing lower back injury. An MRI of the lumbar spine in March 2002 was interpreted as negative. During the August 2006 RO hearing, the Veteran testified that he fell flat on his back off a truck during his SADT service in 1988. He indicated that he was treated at the base clinic with bed rest and muscle relaxers, and had been referred to a private orthopedic doctor. Following his return to civilian life, the Veteran sought treatment at the Anniston Clinic and recalled being diagnosed with a lumbar strain. He was given a back brace. A February 2008 private medical record reflects the Veteran's complaint of back pain following a recent motor vehicle accident (MVA). An October 2008 MRI was interpreted as showing mild bilateral ligamentum flavum hypertrophy from L2-L5 and mild posterior broad-based disc bulge with left parasaggital eccentricity which came into close proximity to the left S1 nerve roots. In September 2009, a VA examiner provided a diagnosis of low back pain secondary to age-related degenerative disc disease. An x-ray was interpreted as showing minimal spur at the anterior margins of the thoracolumbar spine. This examiner did not have access to the claims file to review. An August 2010 VA examiner provided a diagnosis of back strain. An x-ray in July 2010 was interpreted as normal. This examiner could not find any nexus of the back strain to service indicating that the STRs did not contain any care of back pain related to the 1988 fall off of a ration truck. In March 2011, the Board sought a medical opinion from a VHA orthopedist. In an opinion dated June 2011, the VHA examiner opined that there was no evidence to support the theory that the Veteran's fall in 1988 resulted in a back injury. It was further indicated that recent MRI findings were due to aging and not military service with x-rays in July "2011" failing to show arthritis of the lumbar spine. In short, the VHA examiner indicated that the Veteran was not disabled due to a back injury during military service. An October 2011 private chiropractor report reflects an assessment that the Veteran manifested lumbar disc syndrome. The examiner reviewed the STRs reflecting the Veteran's objective findings of soreness and redness on the bottom of his foot following the accident, and the November 1988 EMG/NCV results which revealed a left L4-5 radiculopathy. It was asserted that these findings provided strong objective evidence to support a lumbar spine injury likely due to vertebral disc damage which caused a chemical irritation to the surrounding tissues. It was also noted that it would be possible for the damaged disc to appear intact, as it did in a March 2002 MRI. It was further noted that the Veteran had additional falls in 2001 which resulted in lumbar pain and dysfunction, and that it was possible that these falls contributed to the lumbar disc syndrome that finally manifested by MRI in October 2008. This examiner, citing to a study entitled Foot Ankle Int., 2008 Sep; 29(9): 910-3; The correlation between pes planus and anterior knee or intermittent low back pain; Kosashvili Y, Fridman T., Backstein D., Safir O, Bar Ziv Y., indicated that a strong relationship existed between moderate to severe pes planus and intermittent back pain. In April 2012, upon examination of the Veteran and review of the claims file, a VA examiner opined that there was no currently existing objective medical evidence to support an opinion that the Veteran had a lower back impairment/disability that resulted from, or aggravated by, active military service or service-connected pes planus disability. This examiner stated that there was no objective evidence on examination consistent with lower back impairment, and that lumbar spine radiographs were interpreted as normal. It was stated that any and all MRI abnormalities reported by interpreting radiologists would not have resulted from the Veteran's reported lower back injuries during active military service. A June 2012 private medical opinion indicates that the Veteran held a diagnosis of degenerative disc disease of the lumbosacral spine with a history of lower back pain since 1983. The Veteran reported the onset of back pain after falling off a military truck in the Army. This examiner opined that the Veteran's lower back pain and arthritis was related to the 1983 injury, and was unlikely to resolve. This examiner based this opinion on the Veteran's history, reviewed records and a June 2012 examination. In July 2012, the April 2012 VA examiner was presented with copies of the November 1988 EMG report and the October 2011 chiropractor opinion. The examiner stated that this evidence did not alter the prior opinion rendered in April 2012, but no rationale was provided for this determination. As reflected above, the record contains competing medical opinions as to whether the Veteran's current low back disability results from injury during his SADT service. In order to assess the relative probative value of these opinions, the Board must first evaluate the factual basis underlying these opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (discussing that important, guiding factors to be used by VA adjudicators in evaluating the probative value of a medical opinion include whether 1) the opinion is based upon sufficient facts or data, 2) the opinion is the product of reliable principles and methods and 3) whether the examiner has applied the principles and methods reliably to the facts of the case). The Board first finds that the Veteran's report of a back injury during his period of SADT between April 1988 and November 1988 is credible. While the STRs do not clearly document the circumstances of a back injury, the STRs for this time period do reflect the Veteran's report of falling off a ration truck as well as falling in a bathtub. A November 7, 1988 U.S. Army Reserve Letter refers to a medical report, which is unavailable, indicating that the Veteran had fractured his ribs. The Veteran has supplemented this evidentiary gap with descriptions of falling flat on his back resulting in a low back injury. The Board next finds that, within one month of discharge, the Veteran was diagnosed with left L4-5 radiculopathy confirmed by EMG examination. However, the Veteran appeared to report the onset of his left lower extremity symptoms approximately one week following his SADT discharge. The next month the Veteran was diagnosed with lumbar sprain and possible mild disc syndrome. The question on appeal concerns the Veteran's currently diagnosed degenerative disc disease of the lumbosacral spine, first demonstrated by MRI examination many years later, results from the SADT injury. Unfortunately, the opinions for and against this claim are flawed on one aspect or another. For example, a VA examiner in September 2009 opined that the Veteran manifested low back pain secondary to age-related degenerative disc disease. This examiner did not have benefit review of the claims file, which reflects an incomplete understanding of the facts of this case. A VA examiner in August 2010 could not find a nexus between a current back strain to service on the basis that the STRs did not reflect treatment for back pain. This opinion is defective for failure to consider the Veteran's description of a back injury during his SADT service and his subsequent symptomatology. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the probative value of a medical opinion based on an inaccurate factual basis is lessened). The physician providing the June 2011 VHA opinion found that there was no evidence to support a theory that the Veteran's fall in 1988 resulted in a back injury. However, this examiner did not reflect any awareness that the Veteran was diagnosed with left L4-5 radiculopathy, confirmed by EMG examination, within one month of service discharge and was diagnosed with lumbar sprain and possible mild disc syndrome shortly thereafter. Given the lack of evidence of intercurrent injury between the SADT discharge and the diagnosis immediately after discharge, the VHA examiner opinion is also defective for failure to consider clearly relevant evidence. The VA examiner in April and July 2012 appeared to find that there was no evidence that the Veteran manifested a current low back disability. This examiner also failed to explain the relevance of the November 1988 EMG report. Thus, this opinion is also defective and not consistent with the entire evidentiary record. On the other hand, the Veteran has provided a June 2012 private opinion which opines that the Veteran's current diagnosis of degenerative disc disease of the lumbosacral spine was related to a "1983" injury of falling off a military truck. This opinion was based on the Veteran's reported onset of back pain in "1983," "reviewed records," and examination. The probative value of this opinion is lessened due to a lack of rationale explaining the basis for causation and a lack of attention to detail as the injury occurred in 1988 rather than 1983. Regardless, the Board observes that it is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Here, the record contains STR entries documenting that the Veteran fell of the back of a ration truck. A personnel record includes a reference to the Veteran fracturing his ribs around this time period. Within one month from service discharge, the Veteran was diagnosed with left L4-L5 radiculopathy and, one month thereafter, was diagnosed with lumbar sprain and possible mild disc syndrome. The Board finds no evidence of record to impeach the Veteran's report of chronic low back pain since the SADT injury. In light of this evidence, the Board finds that the June 2012 private opinion places the pertinent evidence of record in relative equipoise on the question of whether the Veteran's currently manifested degenerative disc disease of the lumbosacral spine results from the SADT injury. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's currently diagnosed degenerative disc disease of the lumbosacral spine results from injury during his period of SADT from April to November 1988. Accordingly, the criteria for direct service connection are met. III. Pes planus The Veteran claims that he is entitled to an initial 10 percent rating for bilateral pes planus for the time period from August 22, 2005 to August 1, 2010. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. The following analysis is therefore undertaken with the consideration that different ratings may be warranted for different time periods. An acquired flatfoot disability is evaluated under DC 5276. Under this diagnostic code, a noncompensable rating is warranted for a mild disability with symptoms relieved by built-up shoe or arch support. 38 C.F.R. § 4.71a, DC 5276. A 10 percent rating is warranted for moderate flatfeet (bilateral or unilateral) with weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet. Id. The Veteran's claim stems from an August 2005 application to reopen a prior final denial of service connection for pes planus. In pertinent part, the record includes private treatment records from the Connecticut Surgical Group in April 2006, at which time the Veteran was seeking treatment for bilateral foot pain with standing and walking. He described his pain as interfering with his normal walking and use of shoes. The initial examination in April 2006 demonstrated 5/5, pain-free dorsiflexion, plantar flexion, inversion and eversion. The examiner observed a significant bilateral pes planus deformity with collapse to the medial arch and too-many-toes sign. There was a medial talar bulge on stance and eversion of the heels bilaterally. There was no pain on palpation to the bilateral plantar feet, or on range of motion of the ankle, subtalar joint, metatarsal joints, or metatarsophalangeal joints. The examiner provided an assessment of bilateral pes planus deformity with pain. Thereafter, follow-up consultations reflect an assessment of possible neuritic-type pain in the feet with decreased vibratory sensation as well as plantar fasciitis. In June 2006, the Veteran demonstrated mild tenderness to palpation of the bilateral plantar feet, submetatarsals 1-5. He was noted to have metatarsalgia with pes planus deformity and possible neuritis. The record of an October 2006 evaluation notes pain on palpation to the medial band of the plantar fascia at the medial tubercle of the calcaneus bilaterally. There was also significant collapsing flexible flatfoot. The Veteran was fitted for orthotics. A December 2006 examination was significant for pain on palpation diffusely to bilateral plantar feet more prominent along the plantar fascia. A diagnosis of bilateral pes planovalgus with arthralgia was provided. The Veteran underwent VA C&P examination in September 2009. At that time, the examiner indicated that the Veteran claimed intermittent pain symptoms of the plantar foot surface, but denied stiffness, swelling, weakness, instability or give-way. The Veteran reported pain while walking, standing and at rest, but denied functional limitations. He took over-the-counter nonsteroidal anti-inflammatory medications on a daily basis. On examination, the Veteran walked with a normal gait absent evidence of abnormal weight bearing. For both feet, there was no objective evidence of painful motion, swelling, tenderness, instability, weakness, hammertoes, hallux deformity, skin or vascular abnormality, pes cavus, malunion or nonunion of tarsal or metatarsal bones, muscle atrophy or other foot deformity. The examiner noted a bilateral mild flexible pes planus on stance position. There was no notable varus or valgus angulation of the os calcis in relationship to the long axis of the tibia and fibula. There was also no forefoot-midfoot malalignment, no effect on pronation or abduction, pain on manipulation, or indication of swelling or callosities. There was also no evidence of plantar fasciitis or Achilles tendonitis. An x-ray examination of the left foot was significant for mild soft tissue swelling. An x-ray examination of the right foot was significant for soft tissue swelling as well as a spur at the anterior and posterior aspect of the calcaneus. The examiner described the bilateral pes planus as having a mild effect on activities such as exercise and sports. The Veteran underwent additional VA examination on August 2, 2010. At that time, the Veteran reported bilateral foot symptoms of pain, swelling, redness, and stiffness while standing, walking or at rest. He also experienced fatigability and lack of endurance while standing or walking. His pain and swelling was located from the ankles to the soles of the feet, he had redness of the sole of the foot, stiffness of the ankles, and fatigue and lack of endurance of the feet. He had flare-ups, precipitated by walking and weightbearing, which occurred more than once a week and lasted less than a day in duration. The Veteran could stand for approximately 15-30 minutes, and walk 1/4 of a mile. He used orthotic inserts and a cane to assist in ambulation. Examination was significant for tenderness of the anterior talus and plantar fascia of both feet. There was also moderate pronation with no midfoot or forefoot malignment. The location of weightbearing was over the great toe. Gait was antalgic. The remainder of examination findings was negative. The VA examiner provided diagnoses of bilateral pes planus, and degenerative joint disease (DJD) of the right foot. These diagnoses were determined to have a moderate effect on exercise, and a mild effect on activities such as chores, recreation and traveling. By way of an October 2010 rating decision, the RO granted service connection for bilateral pes planus. A noncompensable rating was assigned from August 22, 2005 through August 1, 2010, and a 10 percent rating was assigned effective August 2, 2010 (the date of VA examination). Applying the criteria to the facts of this case, the Board finds that the criteria for an initial 10 percent rating for bilateral pes planus for the time period from August 22, 2005 through August 1, 2010 are met. In this respect, the lay and medical evidence pertinent to this time frame demonstrates that the Veteran's bilateral pes planus deformity was manifested by collapse to the medial arch and too-many-toes sign, medial talar bulge on stance and eversion of the heels, plantar fasciitis, metatarsalgia and pain on use of the feet. The RO has denied a compensable rating for bilateral pes planus based upon the results of a September 2009 VA C&P examination which was significant only for bilateral mild flexible pes planus on stance position with x-ray examination showing soft tissue swelling of both feet. The RO awarded a 10 percent rating effective August 2, 2010 based upon the results of a VA C&P examination on that date. This examination described tenderness of the anterior talus and plantar fascia of both feet, moderate pronation, weightbearing over the great toe and an antalgic gait. The Veteran argues that his bilateral pes planus disability has been 10 percent disabling since 2005. In other words, the Veteran essentially claims no significant worsening of his bilateral foot disability since 2005 to justify a "staged" rating in this case. The Board agrees. The findings of the September 2009 VA C&P examination generally do not support a compensable rating for bilateral pes planus. However, the Board must interpret an examination report in light of the whole recorded history and reconcile the evidence into a consistent disability picture. See 38 C.F.R. § 4.2. The Veteran's private medical records since 2006 consistently report findings of bilateral pes planus deformity with collapse to the medial arch and too-many-toes sign as well as medial talar bulge on stance and eversion of the heels. The Veteran had tenderness to palpation of the bilateral plantar feet as well as submetatarsals 1-5. He was diagnosed with plantar fasciitis and metatarsalgia. The Veteran complained of pain on use of the feet. The private examiner findings beginning in 2006 are similar to those of the VA examiner in August 2010, which provided the basis for the 10 percent rating assigned by the RO. The Board can find no lay or medical evidence of record which suggests that the Veteran's bilateral pes planus disability has significantly increased or decreased in severity for any time during the appeal period. After reviewing the Veteran's entire recorded history of treatment for bilateral pes planus, the Board finds that the Veteran's bilateral pes planus deformity has been manifested by collapse to the medial arch and too-many-toes sign, medial talar bulge on stance and eversion of the heels, plantar fasciitis, metatarsalgia and pain on use of the feet since the August 22, 2005 effective date of the award of service connection. As such, the criteria for the 10 percent rating for the period from August 22, 2005 through August 1, 2010 are met. As discussed above, the Board has made a jurisdictional finding that the Veteran has limited his appeal to his entitlement to an initial 10 percent rating for bilateral pes planus for the time period from August 22, 2005 through August 1, 2010. This claim has been granted in full. As such, a higher rating under the applicable schedular criteria, on an extra-schedular basis under 38 C.F.R. § 3.321(b), or pursuant to the criteria of 38 C.F.R. § 4.16 (governing total disability ratings based on individual unemployability) are not for consideration. (CONTINUED ON NEXT PAGE) ORDER Service connection for degenerative disc disease of the lumbosacral spine is granted. An initial 10 percent rating for bilateral pes planus, for the period from August 22, 2005 through August 1, 2010, is granted, subject to the legal authority governing the payment of VA compensation. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs