Citation Nr: 1307155	
Decision Date: 03/01/13    Archive Date: 03/11/13

DOCKET NO.  10-03 474	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an evaluation in excess of 30 percent for bilateral flat feet.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. D. Deane, Counsel


INTRODUCTION

The Veteran served on active duty from August 1984 to August 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In August 2011, the Veteran testified at a Board hearing at the RO before the undersigned.  A copy of the transcript of that hearing is of record. 

In October 2011 and September 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional development and readjudication. 

In a January 2013 rating decision, the RO assigned a 30 percent rating for bilateral flat feet, effective September 12, 2008 (the date of the increased rating claim).  The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, and therefore the additional assignment of benefits is not considered to have resolved that claim.  AB v. Brown, 6 Vet. App. 35 (1993).

The following decision is based on review of the Veteran's claims file in addition to his Virtual VA (VVA) file or "eFolder." 

Please note 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).


FINDING OF FACT

The Veteran's service-connected bilateral flat feet disability has been manifested by characteristic callosities, swelling on use, accentuated pain on use, and objective evidence of marked deformities (moderate pronation), without objective evidence of extreme tenderness of the plantar surfaces of the feet or marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances, resulting in no more than severe bilateral flatfoot.


CONCLUSION OF LAW

The criteria for a rating in excess of 30 percent for bilateral flat feet have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Before addressing the merits of the increased rating issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183   (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.  

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board. Indeed, VA's duty to notify has been more than satisfied.  Here, the Veteran filed increased evaluation for his bilateral foot disability in September 2008.  The Veteran was notified by the RO and AMC via letters dated in September 2008 and November 2011 of the criteria for establishing an increased evaluation, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  These letters accordingly addressed all notice elements and the September 2008 letter predated the initial adjudication by the RO in February 2009.  No additional notice is required. 

Next, VA has a duty to assist a veteran in the development of his claim.  This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  The RO has obtained service treatment records and VA treatment records.  The Veteran submitted multiple written statements discussing his contentions.  Further, in August 2011, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned.  Neither the Veteran nor his representative has identified any outstanding pertinent evidence related to his increased rating claim.

The Veteran was also provided with VA examinations for his service-connected bilateral foot disability in October 2008, November 2011, and September 2012.  The Board finds the above September 2012 VA examination report to be thorough and adequate upon which to base a decision with regard to the Veteran's claim.  The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his service-connected foot disability under the applicable rating criteria.  There is also no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected foot disability since the September 2012 VA examination.  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95.  Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to this claim.

Finally, in September 2012, the Board remanded this matter in part for issuance of a Supplemental Statement of the Case, as the July 2012 SSOC failed to discuss or consider VA treatment records contained in the Veteran's Virtual VA eFolder.  38 C.F.R. § 19.31; see also 38 C.F.R. § 20.1304 (the Veteran may waive waiver of agency of original jurisdiction review of evidence submitted directly to the Board may be waived after a case has been certified to the Board).

Here, the Board is cognizant that VA treatment records electronically available through the Compensation and Pension Records Interchange (CAPRI) were uploaded to the Veteran's Virtual VA eFolder in November 2011, February 2012, September 2012, and October 2012.  While the July 2012 and January 2013 SSOCs did not reference evidence contained in the Virtual VA eFolder, it does not mean that records were not, in fact, reviewed by the AMC.  In addition, the Board has reviewed the additional evidence but finds that the records consist of evidence that is essentially duplicative or not relevant to the matter that is the subject of the decision below.  VA treatment records dated from 2009 to 2012 contained a few treatment notes and podiatry consultations showing complaints of bilateral foot pain due to flat feet and notations that the Veteran's condition was stable.  Namely, this evidence goes to show that the Veteran has been treated for flat feet, which is undisputed and clearly established by the evidence that was already of record.  In addition, the evidence does not discuss any of the rating criteria for the assignment of a rating in excess of 30 percent for the Veteran's service-connected bilateral flat feet.  The Board therefore concludes that there is no prejudice in proceeding with consideration of the issue on appeal without affording the RO or AMC an opportunity to issue another SSOC.  38 C.F.R. §§ 19.31(b)(1); 38 C.F.R. § 20.1304(c) (2012).  Further, in February 2013, the Veteran's representative signed and returned an expedited response form, indicating that the Veteran had received the January 2013 SSOC and did not have any additional evidence regarding the appeal as well as wanted the case forwarded to the Board immediately. 

Based on the foregoing, the Board finds that there was substantial compliance with the September 2012 remand directives.  A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order.  Stegall v. West, 11 Vet. App. 268 (1998).  Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required.  D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). 

No further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Laws and Regulations

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.  It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (2012), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor.  38 C.F.R. § 4.3 (2012).  If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012). 

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2012).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282   (1991). 

While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994). 

The Board further acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following matter is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

The Veteran's bilateral flat feet are currently evaluated as 30 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012).  Under Diagnostic Code 5276, pronounced acquired flatfoot that is bilateral in nature with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances, warrants the assignment a 50 percent evaluation.  See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012). 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examinations on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). 

The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups.  The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. 

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  Actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint.  The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  38 C.F.R. § 4.59 (2012). 

Finally, to give the Veteran every consideration in connection with the matter on appeal, the Board must consider all potentially applicable diagnostic codes in rating the Veteran's disability.  See, e.g., Butts v. Brown, 5 Vet. App. 532, 538 (1993) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case"), and Pernorio v. Derwinski, 2 Vet. App. 625, 629   (1992) (one diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology).

When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 


Factual Background and Analysis

VA treatment records dated in February 2008 showed findings of decreased longitudinal arches and excessive pronation late midstance.  The examiner listed an assessment of pes planus and noted use of orthotics.  

In September 2008, the Veteran filed an increased rating claim pertaining to his service-connected bilateral flat feet. 

In an October 2008 VA feet examination report, the Veteran complained of foot pain while standing and walking, burning of the left toes, and burning as well as tingling all over the feet.  He reported that he was able to stand for more than an hour but less than three hours as well as used orthotic inserts with good efficacy.  It was noted that he was currently employed as a part-time truck driver with no lost time from work in the last year related to his foot condition.  Physical examination of the feet revealed no evidence of painful motion, swelling, tenderness, instability, weakness, abnormal weight bearing, hammertoes, hallux valgus or rigidus, skin or vascular abnormality, claw foot, malunion or nonunion of the tarsal or metatarsal bones, varus/valgus angulation of the os calcis, or pronation.  He exhibited normal Achilles alignment, arch present on non weight bearing but not on weight bearing in the left foot, arch present on non weight bearing and on weight bearing in the right foot, no pain on manipulation, and five degrees of heel valgus correctible by manipulation.  The location of the weight bearing line was over the great toe.  X-ray findings dated in October 2008 were listed as minimal degenerative arthritic changes of the feet bilaterally.  The examiner diagnosed bilateral pes planus, noting the moderate as well as severe affects it would have on the Veteran's activities of daily living. 

VA treatment notes dated in March, June, and October 2009 revealed findings of bilateral collapsed medial longitudinal arch, calcaneal valgus, and no pain with palpation of the bilateral medial plantar calcaneal tubercle area or bilateral medial longitudinal arch area.  In December 2009, a VA examiner noted decreased longitudinal arches and excessive pronation. 

In a June 2009 statement, the Veteran asserted that he suffered from bilateral flat feet with swelling and characteristic callosities.  In his January 2010 substantive appeal, the Veteran noted that he required inserts and suffered chronic swelling from standing.  During his August 2011 Board hearing, the Veteran testified that he suffered from excruciating foot pain, swelling, spasms, and functional impairment.  He indicated that he used orthotic inserts, pain medication, and stretching exercises.  He further reported that he worked in construction and missed a lot of time at work due to his foot condition. 

In a November 2011 Foot Miscellaneous (other than Flatfoot/Pes Planus)
Disability Benefits Questionnaire (DBQ), the examiner indicated that the Veteran had bilateral pes planus.  He further noted that the Veteran had bilateral foot pain and fatigue along with bilateral pes planus and diabetes mellitus.  There were no findings of Morton's neuroma, hammer toes, metatarsalgia, hallux valgus, hallux rigidus, claw foot, weak foot, malunion or nonunion of the tarsal or metatarsal bones, use of assistive devices, functional impairment equal to amputation with prosthesis, or other foot injuries.  The examiner indicated that bilateral foot pain and fatigue along with bilateral pes planus, diabetes mellitus, onychocryptosis, and height of keratinized tissue (HKT) decreased the Veteran's stamina and increased his fatigue.  He further commented that the Veteran could no longer work in any job which required prolonged weight bearing for more than 30 minutes at a time.  X-ray reports of the right and left foot revealed pes planus but were otherwise unremarkable.

Additional VA treatment notes dated from 2009 to 2012 located in the Veteran's Virtual VA eFolder showed complaints of bilateral foot pain from flat feet with the notation that the condition was stable.  In a November 2011 VA podiatry consult (also included in the November 2011 DBQ report), the examiner noted callus to the underside of the 4th and 5th toes of both feet.  The assessment was diabetes mellitus, onychocryptosis, and HKT.  The Veteran was noted to have reduced foot range of motion without pain or crepitus, bilateral collapsed medial longitudinal arch, calcaneal valgus, and no pain with palpation of the bilateral medial plantar calcaneal tubercle area or bilateral medial longitudinal arch area.  

In the September 2012 VA Flatfoot/Pes Planus DBQ report, the examiner diagnosed bilateral pes planus, bilateral minimal degenerative changes of the feet, left foot calcaneal spur, and bilateral hallux valgus (also referred to as bilateral bunions) after reviewing the claims file and examining the Veteran.  The Veteran indicated that he continued to wear shoe inserts with dress shoes, wear tennis shoes, and sometimes wear sandals with no shoe inserts.  Signs and symptoms of the Veteran's bilateral flat foot condition were listed as pain on use of the bilateral feet, pain accentuated on manipulation, and swelling on use with symptoms relieved by arch supports but no extreme tenderness of plantar surface of one or both feet.  The examiner marked that there was bilateral decreased longitudinal arch height on weight bearing and objective evidence of marked deformity of the foot, to include bilateral marked pronation that was not improved by orthopedic shoes or appliances.  It was indicated that each foot had weight bearing line fall over or medial to the great toe but no inward bowing of the Achilles' tendon or marked inward displacement and severe spasm of the Achilles tendon (right hind foot) on manipulation. 

The examiner listed other pertinent physical findings for the bilateral feet as:  mild bilateral hallux valgus; moderate tenderness 6/10 on the medial side of the
Hallux; 5/10 tenderness on the ball of the feet; 5/10 tenderness on the post part of the heels on the Achilles tendon; 3 - 4/10 tenderness on the arches and on the plantar surface of the heels; pronation is moderate, not marked in both feet; manipulation of feet has subjective tenderness 5 - 6/10; and no swelling or callus noted.  It was noted that the Veteran's disability did not require use of any assistive devices or impact his ability to work.  The examiner also indicated that the Veteran's flatfoot condition did not result in functional impairment of either extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis.  X-ray reports dated in September 2012 of each foot revealed minimal degenerative joint disease.  The Veteran reported that his feet were painful with pain starting after walking 12 to 13 steps, and pain in the feet decrease to 3/10 after few minutes of rest.  The Veteran was also noted to complain of significant pain and tenderness in the bunions of the bilateral feet, in addition to the pains at the ball of the feet and the heels.

In considering the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to the assignment an evaluation in excess of 30 percent for his service-connected bilateral flat feet residuals.  

The Board finds that the Veteran's symptoms do not more nearly approximate a rating in excess of 30 percent under the applicable rating criteria as they are not of such a severity to result in pronounced bilateral flatfoot with extreme tenderness of the plantar surfaces of the feet and/or marked inward displacement and severe spasm of the tendo achillis on manipulation that are not improved by orthopedic shoes or appliances.  The Board is cognizant that VA treatment providers noted the Veteran had excessive pronation in treatment notes dated in February 2008 and December 2009 and that the September 2012 VA examiner originally marked that the Veteran had bilateral marked pronation that was not improved by orthopedic shoes or appliances in his DBQ report.  However, the September 2012 VA examiner specifically noted in a later section of his report that the Veteran exhibited only moderate, not marked, pronation in both feet.  In addition, the Board finds that the Veteran's bilateral flat feet symptomatology on the whole does not more nearly approximate a 50 percent rating.  None of the other symptoms associated with such a rating are present, and the preponderance of the evidence supports a finding that the Veteran's symptomatology most closely approximates the currently assigned 30 percent rating.  

Evidence of record is also absent any findings of weak foot, claw foot, metatarsalgia, hallux valgus, hallux rigidus, hammer toe, or other foot disability related to the Veteran's bilateral flat foot residuals that would allow for the assignment of higher or separate ratings under applicable rating criteria.  38 C.F.R. § 4.71a, Diagnostic Codes 5276-5284 (2012).  Consequently, the assignment of an evaluation in excess of 30 percent for the Veteran's bilateral flat foot disability based upon any of these diagnostic codes is also not warranted. 

The Board further finds that there is no basis for the assignment of a higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7.  Evidence of record reflects that the currently assigned 30 percent rating properly compensates him for the extent of pain, swelling, and functional loss resulting from his service-connected bilateral flat foot disability. 

After a careful review of the evidence of record, the Board finds that the appeal for entitlement to a rating in excess of 30 percent for bilateral flat feet is not warranted.  The Board has considered staged ratings, under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted.  Since the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

The Board has also considered whether referral for an extraschedular evaluation is warranted.  The question of an extraschedular rating is a component of a claim for an increased rating.  Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

Under the provisions of 38 C.F.R. § 3.321(b)(1) (2012), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation 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 as to render impractical the application of the regular schedular standards."  If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate. Therefore, initially, 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.  Thun v. Peake, 22 Vet. App. 111 (2008).

In this case, the Board finds that the rating criteria for a 30 percent evaluation reasonably describe the Veteran's disability level and symptomatology for his service-connected bilateral flat feet residuals throughout the pendency of this appeal, and provide for a higher rating for additional or more severe symptoms than currently shown by the evidence.  Thus, his disability picture is contemplated by the Rating Schedule, and the assigned scheduler evaluation is, therefore, adequate.  Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. 

Finally, although the Veteran has submitted evidence of a medical disability, and made claims for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable.  The Veteran consistently reported that he had employment as a truck driver and in construction during the course of the appeal.  Therefore, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities has not been raised.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).


ORDER

Entitlement to an evaluation in excess of 30 percent for bilateral flat feet is denied.



____________________________________________
JOAQUIN AGUAYO-PERELES
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs