Citation Nr: 1309743 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 11-05 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for bilateral pes planus with bunions. 2. Entitlement to an effective date earlier than May 1, 2010 for the award of dependency allowance for the Veteran's child B. and entitlement to a retroactive dependency allowance award for the Veteran's spouses and children. REPRESENTATION Appellant represented by: Michael Anton, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran, who is the Appellant, had active service from September 1985 to September 1992. The Veteran served in the Reserves from March 1979 to September 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in March 2010 and June 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The March 2010 rating decision granted service connection for bilateral pes planus with bunions and assigned a 10 percent evaluation, effective September 22, 1994. The June 2010 administrative decision denied a retroactive award for a dependency allowance for the Veteran's spouses and three children from September 22, 1994 and assigned May 1, 2010 as the effective date for the dependency allowance for the Veteran's child B. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing at VA Central Office in July 2012. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. Prior to November 11, 2010, the service-connected bilateral pes planus was principally manifested by pain on manipulation and use, swelling on use, and objective findings of tenderness that are productive of mild to moderate disability. 2. From November 11, 2010, the service-connected bilateral pes planus is manifested by pronation, pain on manipulation and use, swelling, and characteristic callosities, with some improvement with the use of orthotics which is productive of severe disability and impairment. 3. For the entire appeal period, the service-connected pes planus has not been manifested by pronounced disability with extreme tenderness of the plantar fascia, marked inward displacement of the tendo Achilles on manipulation, or spasm of the tendo Achilles on manipulation. 4. The Veteran's child B. was born in May 1992, her child K. was born in February 1987, and her child J. was born in January 1985. 5. The Veteran was married to B.B. from September 1990 to September 1999, and she was married to D.T. from December 2000 to July 2002. 6. In a June 1995 rating decision, the RO assigned a 30 percent rating to the service-connected sinusitis effective September 24, 1994, and the Veteran has been in receipt of disability compensation of 30 percent or greater since that date. 7. In June 1995, VA sent a letter to the Veteran at her last known address requesting evidence of her dependents. 8. There is no indication in the claims folder that the June 1995 letter was returned as undeliverable. 9. A Declaration of Status of Dependents, VA Form 21-686c, which was completed and signed by the Veteran was received at the RO on April 29, 2010 and a Request for Approval for School Attendance VA Form 21-674, which was completed and signed by the Veteran was received at the RO on June 30, 2010. 10. In February 2011, a dependency allowance for the Veteran's child B. was added to her compensation award from May 1, 2010, which was the first day of the month following receipt of the claim, through June 1, 2014, which is the first day after the month of termination of school attendance for a child over age 18. 11. On February 24, 2011, copies of the certificates of birth and certificate of adoption for the Veteran's children and copies of her marriage certificates and divorce decrees were received at the RO. 12. Notice of the Veteran's status of dependents was not received at the RO within one year of the June 1995 VA letter or prior to April 29, 2010. CONCLUSIONS OF LAW 1. Prior to November 11, 2010, the criteria for an initial disability rating in excess of 10 percent for the service-connected bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a 30 percent rating, but no greater, for bilateral pes planus have been met from November 11, 2010. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2012). 3. The criteria for an effective date earlier than May 1, 2010 for the payment of dependency allowance for the Veteran's child B. have not been met. 38 U.S.C.A. §§ 5110(f), 5111(a) (West 2002); 38 C.F.R. §§ 3.4, 3.204, 3.205, 3.216, 3.401(b) (2012). 4. Retroactive dependency allowance for the Veteran's three children and spouses from September 22, 1994 is not warranted. 38 U.S.C.A. §§ 101(4), 1115(2), 5110(f) (West 2002); 38 C.F.R. §§ 3.57, 3.158, 3.204, 3.400, 3.401 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the appeal for a higher initial rating for pes planus, the RO provided a VCAA notice letter to the Veteran in October 2009, prior to the initial adjudication of the claim. The letter notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of his claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in October 2009. The Veteran's appeal for a higher initial rating arises from her disagreement with the initial evaluation following the grant of service connection. VCAA notice regarding the service connection claim was furnished to the Veteran in October 2009. Courts have held that, once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). Therefore, no further notice is needed under VCAA regarding this issue. In the present case, the Board is granting a higher initial disability rating of 30 percent for the service-connected bilateral pes planus with bunions from November 11, 2010. The Veteran and representative have stipulated that a grant of such benefits from this stage would fully satisfy the appeal for a higher initial rating. Therefore, this decision constitutes a full grant of the benefits sought on appeal on the issue of higher initial rating for bilateral pes planus with bunions, so that no further discussion regarding VCAA notice or assistance duties is required with regard to this issue. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting a claimant in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records and VA treatment records are associated with the claims folder. Private medical records are also associated with the claims folder. The Veteran was advised of the evidence the RO was unable to obtain. In February 2012, the Veteran indicated that she had no additional information or evidence to submit in support of her appeal. The Veteran underwent a VA examination in February 2010 to obtain medical evidence as to the nature and severity of the service-connected pes planus disability. The Board finds that the February 2010 examination report is adequate for rating purposes. The VA examination report indicates that the claims file was reviewed by the examiner and the examiner solicited the Veteran's medical history and complaints, and the report details a thorough examination of the Veteran. The Board finds that the examination report is accurate and fully descriptive. The February 2010 VA examination report provides an opinion as to the effects of the pes planus on the Veteran's ordinary activity and occupational impairment. The Board finds that the Veteran has been afforded adequate examinations of the pes planus. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that the duties to notify and assist the Veteran in this claim have been met, so that no further VCAA notice or assistance is required. 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). Regarding the issues of entitlement to an effective date earlier than May 1, 2010 for the award of dependency allowance for the Veteran's child B. and entitlement to a retroactive dependency allowance award for the Veteran's spouses and children, the RO provided a VCAA notice letter to the Veteran in October 2009, prior to the initial adjudication of the claim, and this letter provided notice of how effective dates are assigned. RO letters dated in April 2010 and June 2010 provided notice of the requirements for dependency allowance. Also, in this case, the record shows that the Veteran had actual knowledge of the requirements for a dependency allowance and the assignment of an effective date for dependency allowance. The Veteran's testimony at the hearing before the Board in July 2012 shows that she had an understanding of the pertinent law and regulations with respect to dependency allowances and the assignment of the effective date for this award and an understanding of the evidence and information needed to establish dependency. Further, the Veteran is represented by an attorney throughout the claims process and her attorney presented arguments as to the effective date and dependency allowance issue, demonstrating actual knowledge of the legal criteria for an earlier effective date. Accordingly, VA's duty to notify has either been satisfied or any deficiency has caused no prejudice to the Veteran. Moreover, as the basis of the denial of the effective date for dependency allowance issue, as the basis for this decision is lack of legal entitlement, no further VCAA notice or duty to assist is required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004 (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). The Board finds that the record as it stands includes sufficient competent evidence to decide the appeal for earlier effective date that includes retroactive dependency allowance. See 38 C.F.R. § 3.159(c)(4) . The Board finds that all relevant evidence has been obtained with regard to the Veteran's dependency allowance issue, and the duty to assist requirements have been satisfied. All pertinent evidence including all notice letters from the RO and responses from the Veteran are associated with the claims file. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that in cases where the law is dispositive of the claim, the claim should be denied due to a lack of entitlement under the law and VCAA notice is not required. See Sabonis v. Brown, 6 Vet. App. 426 (1994); Also see Parker v. Principi, 15 Vet. App. 407, 412 (2002); Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001). Therefore, as discussed below, because the claim of entitlement to a retroactive additional dependency allowance for the Veteran's spouse and three children is being denied as a matter of law for reasons that will be explained below, the Board finds that further discussion of the mandates of the VCAA is not required. Higher Initial Ratings for Pes Planus Disability Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The Court has held that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (the Court noted a distinction between claims stemming from an original rating versus increased rating). The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 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. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. Id. 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 innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. In DeLuca, 8 Vet. App. 202, the U.S. Court of Appeals for Veterans Claims (Court) held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. The Court has also noted that, when rating spine disabilities, the Board must discuss any additional limitation of motion that a veteran has due to pain, weakness, or fatigue. See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010). Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. Functional loss due to pain is to be rated at the same level as the functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair). Under Diagnostic Code 5276, acquired flatfoot, a 30 percent evaluation is assigned for bilateral pes planus if severe, with objective evidence of marked deformity (pronation, abduction, etc), accentuated pain on manipulation and use, indications of swelling on use, with characteristic callosities. A 50 percent evaluation is assigned for pronounced bilateral pes planus, with marked pronation, extreme tenderness of the plantar surface of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, and not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012). Analysis of the Initial Rating for Pes Planus The Veteran contends that higher initial ratings are warranted for the service-connected pes planus. At the June 2012 Board hearing, the Veteran testified that her feet swell when she walks, that her foot pain has worsened with use and when pressed on especially her first and second joints, and that a 30 percent rating from November 2010 would fully satisfy her appeal. In the March 2010 rating decision on appeal, the RO granted service connection and assigned an initial 10 percent rating for bilateral pes planus with bunions, pursuant to Diagnostic Code 5276, effective September 22, 1994. See 38 C.F.R. § 4.71a. The March 2010 rating decision stemmed from an October 2009 claim of service connection; however, the effective date of September 22, 1994, was assigned based on the RO finding that additional missing service treatment records were associated with the record after the April 1995 rating decision denying service connection for bilateral pes planus with bunions. See 38 C.F.R. § 3.156(c) (2012). Thus, the Veteran's original claim for service connection was adjudicated on a de novo basis. The Board has carefully reviewed the evidence of record and finds that, affording the Veteran the benefit of doubt, a 30 percent rating is warranted for the service-connected bilateral pes planus from November 11, 2010. Under Diagnostic Code 5276, severe flatfoot (pes planus), with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities is rated 30 percent disabling for bilateral disability. 38 C.F.R. § 4.71a. After a review of all the evidence in this case, the Board finds that the evidence is in equipoise on the issue of whether a 30 percent evaluation is warranted for the service-connected bilateral pes planus from November 11, 2010. There is competent and credible evidence of record which establishes that, from this date, the bilateral pes planus is productive of more than moderate disability and the pes planus more closely approximates severe disability. A November 11, 2010 private treatment record from the Veteran's treating physician indicates that the Veteran had complaints of painful feet bilaterally associated with bunions and some pain in the left forefoot. It was noted that this had been more problematic for several years off and on and was slowly more discomforting as time went on. It was also noted that the Veteran has tried several pairs of different orthotics and change in shoe gear with some mild improvement. The Veteran denied specific trauma, redness, or swelling. She indicated that the feet hurt consistently in weight bearing and shoe wear. It was noted that the Veteran was moderately active with exercising on a treadmill and with work responsibilities. Examination in November 2010 revealed a depressed medial arch. There was evidence of moderate pain on direct palpation of the dorsal aspect of the second metatarsal phalangeal joint on the left especially with dorsal luxation but not obviously dislocatable. The physician indicated that there was a need for orthotics to be full length with an off loading metatarsal pad. A November 15, 2010 VA treatment record indicates that the Veteran treated the foot pain with custom orthotics and shoe gear accommodation with limited relief. The podiatrist indicated that this was the best course of treatment. At the July 2012 Board hearing, the Veteran testified that she wears custom orthotics all of the time due to the flat feet. She stated that she had swelling, fatigability, and weakness in the feet. The Veteran testified that she has pronation due to the flat feet. The Veteran asserts that she also has calluses on her feet and toes. She stated that she pronates when she walks, her feet hurt every day, and she cannot walk long distances. The Veteran has provided lay evidence that she has symptoms of pronation, pain on use, swelling, and callosities in her feet. The Board finds that the Veteran is competent to report observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability that are susceptible of lay observation). The record further shows that the Veteran had medical training although it is not clear from the record whether she is a licensed medical doctor. The record establishes that the Veteran has the skill and expertise as a health care professional to describe her pes planus symptoms such as pronation. See Black v. Brown, 10 Vet. App. 279, 284 (1997). The Board has an obligation to determine the credibility of all evidence, lay and medical. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). The Board finds that the Veteran's statements are credible. The statements are consistent with the evidence of record, particularly the November 11, 2010 treatment record, and her own statements. The Board finds no evidence of record that would undermine the Veteran's credibility. The Board finds that the weight of the competent and credible lay and medical evidence establishes that, from November 11, 2010, the Veteran's service-connected bilateral pes planus causes more than moderate symptoms and is productive of severe disability and impairment. There is competent and credible evidence of pronation of the feet, pain on manipulation and use, swelling, callosities, and improvement in symptoms with orthotics; thus, affording the Veteran the benefit of the doubt, the Board finds that a 30 percent rating is warranted for the service-connected bilateral pes planus from November 11, 2010 under Diagnostic Code 5276. 38 C.F.R. §§ 4.3, 4.7. The appeal for a higher initial rating is fully granted in this Board decision. At the Board hearing, the Veteran specifically indicated that a staged 30 percent disability rating from November 11, 2010 would fully satisfy the appeal as to this issue, and there would be no remaining questions regarding the appeal. See hearing transcript p. 20. Thus, this is a full grant of the benefits sought on appeal as to this issue. This is distinguished from a case where a veteran does not express satisfaction with a partial increased rating during an appeal that is less than the maximum schedular rating. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability). The Board finds the Veteran's waiver of the remaining aspects of the appeal for higher initial rating for pes planus with bunions was knowing and intelligent, was made with representation and in the presence of her attorney, and was supported by the Veteran's testimony and the evidence of record showing a worsening of the pes planus disability in November 2010. Because a 30 percent initial disability rating for pes planus with bunions is granted for the period from November 11, 2010, the Veteran has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed a higher initial rating in excess of 30 percent from November 11, 2010, and by withdrawing the aspects of the appeal that encompassed a higher initial rating than 10 percent prior to November 11, 2010. See 38 C.F.R. § 20.204 (2011) (providing that an appellant may withdraw an issue at any time before the Board issues a final decision). For these reasons, any questions of a higher initial disability rating in excess of 10 percent prior to November 11, 2010, and in excess of 30 percent from November 11, 2010, are rendered moot with no remaining questions of law or fact to decide. See 38 U.S.C.A. § 7104 (West 2002); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Extraschedular Consideration Finally, the Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, it must determine whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's symptoms and functional limitations due to the bilateral pes planus with bunions are contemplated by the rating schedule; therefore, the assigned schedular evaluations are adequate to rate the disability. The record shows that the service-connected bilateral pes planus is manifested by swelling, callosities, pronation, pain on manipulation and use, and the need for orthotics. The rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. The rating criteria for flat feet or pes planus contemplate symptoms such as marked pronation, extreme tenderness, and severe spasm of the tendo Achilles on manipulation. The rating criteria also consider whether or not orthopedic shoes or appliances improve the symptoms. Hence, as the schedular rating reasonably describes the Veteran's disability picture, referral for extraschedular consideration is not warranted. In addition, as the Veteran has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed a higher initial rating in excess of 30 percent from November 11, 2010, and by withdrawing the aspects of the appeal that encompassed a higher initial rating than 10 percent prior to November 11, 2010, the full grant of benefits in this case also effects withdrawal of extraschedular rating considerations. See 38 C.F.R. § 20.204. For these reasons, any questions of a extraschedular disability rating are also rendered moot with no remaining questions of law or fact to decide. Entitlement to Retroactive Dependency Allowance The Veteran contends that she is entitled to retroactive dependency allowance from September 22, 1994 based upon her disability compensation benefits. The Veteran stated that she was unaware she was being paid as a single veteran with no dependents until April 8, 2010. She indicated that, as soon as she found out that she was not getting paid for dependents, she applied for dependency allowance. The Veteran asserts that she has never received the June 1995 VA letter which requested information on her dependents' status. The Veteran indicates that at that time, she and her family were in the process of moving in July 1995 and she started a new job in August 1995. She stated that she never received the June 1995 VA letter. The Veteran asserts that, had she received the June 1995 letter, she would have provided the marriage and birth certificates to VA. The Veteran asserts that she is entitled to dependency allowance from October 1, 1994 to May 1, 2010. See the Veteran's testimony at the hearing before the Board in July 2012 and the statement dated in July 2012. The evidence of record shows that the Veteran's child B. was born in May 1992, her child K. was born in February 1987, and her child J. was born in January 1985. The Veteran was married to B.B. from September 1990 to September 1999, and she was married to D.T. from December 2000 to July 2002. A veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. The additional allowance is payable from the effective date of the rating if proof of dependency is received within one year from the date of notification of such rating action. 38 U.S.C.A. § 5110(f). The allowance is generally discontinued when a child turns 18, or when the child turns 23 if he or she is enrolled in school. 38 C.F.R. § 3.503 (2012). The effective date of the award of any benefit or increase by reason of marriage or the birth/adoption of a child shall be the date of that event if proof is received by VA within a year from the date of marriage, birth or adoption. 38 U.S.C.A. § 5110(n). Regarding additional compensation for dependents, the effective date will be the latest of the following dates: (1) date of claim; (2) date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action; or (4) date of commencement of the Veteran's award. 38 C.F.R. § 3.401(b). The "date of claim" for additional compensation for dependents is the date of a veteran's marriage or birth/adoption of a child, if evidence of the event is received within a year of the event; otherwise, the date notice is received of the dependent's existence, if evidence is received within a year of notification of such rating action. 38 C.F.R. § 3.401(b)(1). The earliest that the additional award of compensation for a dependent child can occur is the first day of the month following the effective date. 38 C.F.R. § 3.31 (2012). The definition of the term "child," as defined for VA purposes, means an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household or was a member of the veteran's household at the time of the veteran's death, or an illegitimate child. In addition, the "child" must also be someone who: (1) is under the age of 18 years; or (2) before reaching the age of 18 years became permanently incapable of self support; or (3) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4); 38 C.F.R. § 3.57(a). Entitlement to retroactive benefits for the Veteran's children and spouses from September 1994 are not warranted. Individuals to whom benefits are being paid are required to certify, when requested, that any or all of the eligibility factors which established entitlement to the benefit being paid continue to exist. 38 C.F.R. § 3.652(a) (2012). When the required certification is received, benefits will be adjusted, if necessary, in accordance with the facts found. 38 C.F.R. § 3.652(b). In a June 1995 rating decision, the RO assigned a 30 percent rating to the service-connected sinusitis effective September 24, 1994 and the Veteran has been in receipt of disability compensation of 30 percent or greater since that date. In June 1995, VA sent a letter to the Veteran at her last known address requesting evidence of her dependents. In the June 28 1995 letter, the RO asked the Veteran to submit additional information for her claimed dependent children including the child's full name, date and place of birth, and social security number. The RO asked the Veteran to submit additional information to establish her marriage. The Veteran was also asked to submit a VA Form 21-686c and to submit copies of her children's public records of birth and marriage certificates and divorce decrees. The RO notified the Veteran that, if they did not receive this information within one year of the date of the letter, they would not be able to pay the Veteran any additional benefits for any period before the date of receipt. Review of the record shows that the Veteran did not submit this information within one year of the date of the June 1995 letter. There is no indication in the claims file that the Veteran responded to this letter. The Veteran submitted a Declaration of Status of Dependents, VA Form 21-686c, to the RO on April 29, 2010 and a Request for Approval for School Attendance VA Form 21-674 to the RO on June 30, 2010. On February 24, 2011, copies of the certificates of birth and certificate of adoption for the Veteran's children and copies of her marriage certificates and divorce decrees were received at the RO. Notice of the Veteran's status of dependents was not received at the RO within one year of the June 1995 VA letter or prior to April 29, 2010. As such, based on lack of information in response to the July 1995 letter, VA did not add compensation for the Veteran's spouses and for the Veteran's children, B., K., or J., to her award. The Veteran is presumed to have received the June 1995 notice letter. Woods v. Gober, 14 Vet. App. 214, 220 (2000) (holding that there is a presumption of regularity that the Secretary of VA properly discharges his official duties by mailing a copy of a VA decision to the last known address of the appellant and the appellant's representative, if any, on the date that the decision was issued); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach). There is no evidence in the claims file that the June 1995 VA letter was returned to the RO as undeliverable. The letter was addressed to the Veteran's address of record at that time. While the Board finds that the Veteran is sincere in believing she had not received the June 1995 notice, in order to rebut the presumption of regularity, she must submit "clear evidence to the effect that [VA's] regular mailing practices [were] not regular or that they were not followed." Woods, 14 Vet. App. at 220. This requires additional evidence to corroborate the assertion that a document was not received, such as an addressing error by VA that was consequential to delivery. Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007). The Veteran has not submitted clear evidence to the effect that VA's regular mailing practices were not regular or that they were not followed. The address on the June 1995 notice letter is identical to the address she provided on a statement to VA in May 1995. There was no indication in the May 22, 1995 letter that she had moved or was going to move in June 1995. At the hearing before the Board in July 2012, the Veteran stated that she had moved in July 1995 and began a new job in August 1995. She does not indicate that she moved in June 1995, when the letter was sent to her address of record. Of record is a direct deposit authorization form and envelope which is date-stamped as received in September 1995. On the envelope, the Veteran provided a new address. In subsequent letters to the Veteran, the RO used the new address. The evidence does not show that the Veteran provided notice of a new address prior to September 1995. The Board finds that the Veteran did not submit clear evidence sufficient to rebut the presumption of regularity that a letter was not received. The Veteran's statements made over 20 years after the date in question are not clear evidence and are insufficient to rebut the presumption of regularity. See id.; YT v. Brown, 9 Vet. App. 195, 199 (1996). It is the Veteran's responsibility to report the status of her dependents promptly and accurately. Specifically, when requested by VA in June 1995 to provide specific information and copies of birth records for her children and records of her marriage, the record reflects that the Veteran did not provide such information. As such, VA was under no legal duty to investigate the matter further in light of the information not provided by the Veteran herself. Accordingly, there is no basis for the award of retroactive benefits based on the claimed dependency status of B., J., and K. and based upon her spouse. The law is dispositive of the outcome of this case. As a matter of law, there is no entitlement to a retroactive award of dependency allowance for the Veteran's children and spouses, and the claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The effective date of May 1, 2010 for the payment of dependency allowance for the Veteran's child B. is proper. In February 2011, a dependency allowance for the Veteran's child B. was added to the Veteran's compensation award from May 1, 2010 which was the first day of the month following receipt of the claim through June 1, 2014 which is the first day after the month of termination of school attendance for a child over age 18. In the present case, when requested by VA in June 1995 to provide specific information and copies of birth records for her children, the record reflects that the Veteran did not provide such information. She did not provide the requisite information about her child B. until April 29, 2010. The Veteran submitted a Declaration of Status of Dependents, VA Form 21-686c to the RO on April 29, 2010 and a Request for Approval for School Attendance VA Form 21-674 to the RO on June 30, 2010. On February 24, 2011, copies of the certificates of birth and certificate of adoption for the Veteran's children were received at the RO. Notice of the Veteran's status of dependents was not received at the RO within one year of the June 1995 VA letter or prior to April 29, 2010. As such, May 1, 2010 is the proper effective date for the award of dependency allowance for B. This is the first day of the month following the effective date of the claim, which is April 29, 2010. See 38 C.F.R. §§ 3.31, 3.401(b)(1). For these reasons, the Board finds that the appeal for an effective date earlier than May 1, 2010 for the award of the dependency allowance for the child B. must be denied. ORDER A 30 percent initial disability rating for the service-connected bilateral pes planus with bunions, for the period from November 11, 2010, is granted; an initial disability rating in excess of 10 percent prior to November 11, 2010, and in excess of 30 percent from November 11, 2010, having been rendered moot, is denied. A retroactive dependency allowance for the Veteran's children B., J., and K. and spouses, and an effective date earlier than May 1, 2010 for the award of the dependency allowance for the child B., is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs