Citation Nr: 1307151 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 11-09 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 30 percent for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1953 to January 1955. This case is before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2011, the Veteran testified before a Decision Review Officer at the RO. The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in January 2012; a transcript of each proceeding is of record. When this appeal was previously before the Board in July 20012, the Board remanded the claim for entitlement to a rating in excess of 30 percent for bilateral pes planus for additional development. The case has been returned to the Board for further appellate action. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT Bilateral pes planus is manifested by no more than severe impairment; there is no objective evidence of marked pronation, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo Achilles on manipulation that is not improved by orthopedic shoes or appliances. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for bilateral pes planus are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided adequate VCAA notice for his claim in an August 2009 letter, prior to the December 2009 rating decision on appeal. The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim. In this regard, the record also reflects that all pertinent available medical evidence identified by the Veteran has been obtained, to include private and VA outpatient treatment records. In addition, the Veteran has been afforded appropriate VA examinations in connection with the claim decided herein, most recently in September 2012. The Board has reviewed the September 2012 examination report and finds that there has been substantial compliance with the Board's July 2012 remand directive. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not asserted, and the evidence of record does not show, that his bilateral pes planus increased significantly in severity since the most recent examination. The Veteran has also been afforded a hearing before the Board. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim on appeal. General Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. The Veteran is currently assigned a 30 percent evaluation for bilateral pes planus. The record reflects that service connection for bilateral pes planus was originally granted in a March 2001 RO decision. The present claim for an increased rating was received in July 2009. The Veteran's service-connected bilateral pes planus disability is rated under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5276. Under Diagnostic Code 5276, a noncompensable evaluation is for assignment for mild pes planus with symptoms relieved by built-up shoe or arch support, whether the disability is unilateral or bilateral. A 10 percent evaluation is for assignment for moderate pes planus with evidence of weight bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet whether the disability is unilateral or bilateral. For a severe pes planus disability, the rating criteria contemplates objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indications of swelling on use with characteristic callosities, with a 20 percent evaluation assigned for a unilateral disability and a 30 percent evaluation for a bilateral disability. Lastly, 30 and 50 percent evaluations may be assigned for unilateral and bilateral pes planus, respectively, that is pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation that is not improved by orthopedic shoes or appliances. The Veteran was provided a VA examination in September 2009. The examiner reviewed the claims files. The Veteran denied a history of foot surgery for the service-connected pes planus. The Veteran endorsed symptoms of intermittent daily foot pain. He reported foot pain that occurs with walking and said that the pes planus limited his length of walking to 10 minutes. He also said that he had foot pain with standing, and his standing was limited to 15 minutes. The Veteran also reported that foot pain can occur at rest, but foot symptoms were better at rest and worse with standing and walking. He denied weakness of the toe joints but had fatigability with repeated use of the foot, bilaterally. He endorsed flare-ups of foot pain that were at a level of 8/10. The frequency of flare-ups was 7 to 10 days with a duration of 2 hours with pain medication. During flare-ups the Veteran avoids walking. The examiner could not estimate the additional loss of range of motion or loss of function during a flare-up without resorting to medical speculation. The Veteran was not having a flare-up of pain during the examination. Treatment of the pes planus consisted of medication every 7 to 10 days, which helped. The Veteran denied using corrective shoes, a cane, or crutches for the disability. Prior use of shoe inserts reportedly did not help. The Veteran was retired and the examiner was unable to say without speculation what effect the bilateral pes planus would have on employment. The examiner indicated that there were no effects of the pes planus on daily activities except for that walking was limited to 10 minutes, standing was limited to 15 minutes, and the Veteran could not run. Upon physical examination, the Veteran had a limping gait reportedly due to both feet, and was able to stand. There was no tenderness of the toe joints, complaint of pain with range of motion of the toes, definite weakness of the toes, or joint instability of the toes, and no additional range of motion loss due to pain, fatigue, weakness, lack of endurance, or incoordination following repetitive use. There was no tenderness of the feet, foot pitting edema, or foot callosities. There was foot skin breakdown. The shoe wear pattern was normal. Weight bearing alignment of the Achilles tendon was abnormal with heel valgus (outward slanting of heel) of 5 degrees of the left side and 5 degrees of the right side. Achilles tendon non-alignment could be corrected by manipulation, and there was no report of tenderness with the manipulation. Non-weight bearing of the Achilles tendon was normal. The examiner noted bilateral hallux valgus with 8 degrees on the left side of angulation at the first metatarsal joint, and 10 degrees on the right side of angulation at the first metatarsal phalangeal joint. The examiner noted that the impression of X-rays of the feet taken in March 2002 was that bilateral changes were seen including moderate diffuse degenerative changes and calcaneal spurs. The diagnoses included service-connected bilateral pes planus, in addition to degenerative joint disease and calcaneal spurs of both feet and bilateral hallux valgus. VA treatment records show that X-rays of the Veteran's feet were taken in April 2010. The impression on the left was of plantar calcaneal spurs and first metatarsophalangeal joint arthritic change. On the right, the impression was of first metatarsal-phalangeal joint arthritic change and plantar calcaneal spurs. Private treatment records dated in July 2011 reveal that the Veteran was found to have a splayed right foot with some tenderness, and a degree of degenerative changes in the right foot. In August 2011, the Veteran testified before a Decision Review Officer at the RO. He stated that he has pain in both feet, but the right foot had gotten really bad. He testified that his feet swell and spasm, and he has calluses and bone spurs on both feet. The Veteran also said that his feet are tender and hurt on manipulation. The Veteran stated that he felt like he was limping. He said that VA had prescribed implants for his shoes but they did not work out. The Veteran related that he had been prescribed pain medication for his feet, but was told to take Tylenol when he became allergic to the prescribed medication. The Veteran testified that his feet had become more painful and stiff. He stated that he could not walk more than 30 or 40 feet before he had to stop and rest for a couple or few minutes. The Veteran also testified before the undersigned Veterans Law Judge at the RO in January 2012. He stated that with regards to current treatment for his pes planus, VA had provided him with inserts which did not help. He said that he gets pain, especially in the mornings, and later in the day he gets leg cramps. The Veteran said that he has seen a podiatrist who said that the bone spurs and arthritis in his feet are due to his flat feet. He testified that he experiences pain when walking due to extreme tenderness in the plantar surface. He also said that when his feet are manipulated he does experience spasms or pain. He further stated that he has worsening problems with weight bearing. The Veteran underwent another VA examination in September 2012. The Veteran reported having increasing pain and stiffness in the feet and leg spasms. He denied having interval injury of the feet, and denied interval surgery, injection, or other treatment. The examiner indicated that the Veteran has pain on use of the feet, and such pain is accentuated on use. He also has pain on manipulation of both feet, and the pain is not accentuated on manipulation. The examiner noted that there was no indication of swelling on use, or characteristic calluses. The Veteran's symptoms were not relived by arch supports, built up shoes, or orthotics, and both sides remain symptomatic despite arch supports or orthotics. The Veteran does not have extreme tenderness of the plantar surface of one or both feet. The Veteran did have decreased longitudinal arch height on weight-bearing on both sides. There was no objective evidence of marked deformity of the foot, such as pronation, abduction, etc. There was no marked pronation of either foot. The weight-bearing line did fall over or medial to the great toe on both sides. There was no lower extremity deformity other than pes planus, causing alteration of the weight bearing line. The Veteran did have "inward" bowing of the Achilles' tendon on both sides. He did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation. There were no scars related to pes planus or to the treatment of pes planus, and the Veteran did not have any other pertinent physical findings, complications, conditions, signs and/or symptoms related to pes planus. The Veteran does not use any assistive devices as a normal mode of locomotion. He did not experience functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner indicated that imaging studies of the foot had not been preformed and results were not available, but the examiner noted that other significant findings included right 1st metatarsophalangeal joint arthrosis, which is unrelated to flat foot. The examiner indicated that the Veteran's flatfoot condition does not impact his ability to work. An addendum to the September 2012 examination report dated the same day indicates that the claims files were reviewed. The Board has reviewed the Veteran's pertinent VA treatment records. Such records reveal that during the appeal period the Veteran has had complaints of pain in the feet and legs referable to his pes planus, and he has been advised on properly fitted and supportive shoes. Foot orthosis reportedly has not helped the Veteran. The Board finds that the Veteran's bilateral pes planus does not warrant a higher rating at this time. There is no evidence in the examination reports or treatment records of characteristics indicative of a pronounced pes planus disability, to include objective evidence of marked pronation, extreme tenderness of plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo Achilles on manipulation that is not improved by orthopedic shoes or appliances. The September 2012 VA examiner specifically reported that the Veteran did not have such symptoms. Additionally, the Board finds that the Veteran's complaints of pain in his feet are contemplated by the 30 percent disability rating which he is currently receiving. In this regard, the Board notes that the evidence does not demonstrate that the Veteran's bilateral pes planus is currently manifested by most of the symptoms associated with his current 30 percent rating. The September 2012 VA examiner indicated that there was no indication of swelling on use, or characteristic calluses, and there was no objective evidence of marked deformity of the foot, such as pronation, abduction, etc. Thus, the Board finds that the symptoms of the Veteran's bilateral pes planus are consistent with the currently assigned 30 percent evaluation. While the Veteran is competent to report that his disability is worse than presently evaluated, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Here, although the Veteran may believe that he meets the criteria for a disability rating in excess of what has been assigned, the medical findings do not meet the schedular requirements for a higher evaluation, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative of the degree of disability. Furthermore, there is no basis for staged ratings. Neither the lay nor the medical evidence establishes that the disability met the criteria for a rating in excess of what has been assigned at any time during the appeal period. As such, the Board finds that a uniform disability rating is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a) (2012). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here, as discussed above, the record shows that the manifestations of the disability are consistent with those contemplated by the applicable schedular criteria. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. ORDER Entitlement to a rating in excess of 30 percent for bilateral pes planus is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs