Citation Nr: 1311263 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 05-20 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for bilateral pes planus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1998 to August 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which awarded separate 10 percent evaluations for bilateral pes planus, effective August 2, 2001. The Veteran timely appealed that evaluation. By way of procedural background, an August 2001 rating decision by the RO in San Diego, California, granted service connection for migraine headaches and bilateral pes planus valgus with bilateral ankle pain. Each disability was assigned a 10 percent evaluation, effective August 2, 2001. In a December 2003 rating decision, the RO in Oakland, California, declined to increase the 10 percent ratings assigned for the Veteran's service-connected migraine headaches and bilateral pes planus with ankle sprain. Subsequently, the Veteran moved, and her claims file was transferred to the jurisdiction of the RO in St. Petersburg, Florida. In an October 2007 rating decision, the RO in St. Petersburg, Florida granted a 30 percent evaluation for the Veteran's migraine headache disability, effective from May 2002. A December 2007 rating decision, awarded separate 10 percent evaluation for bilateral pes planus. In a May 2009 decision, the Board denied the Veteran's claim for ratings in excess of 10 percent for right and left ankle sprains and bilateral pes planus, and a rating in excess of 30 percent for migraine headaches. The Veteran appealed the Board's May 2009 decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2011 Memorandum Decision, the Court affirmed the portion of the Board's decision that denied ratings in excess of 10 percent for right and left ankle sprains and in excess of 30 percent for migraine headaches. The Board therefore considers those issues final at this time and will no longer address them. At the same time, the Court vacated the portion of the May 2009 Board decision that denied a rating in excess of 10 percent for bilateral pes planus, finding that the Board failed to adequately discuss whether the Veteran's pronation entitled her to a higher disability rating. The matter was remanded to the Board. Prior to addressing the claim on the merits, in March 2012, the Board remanded the claim for further development. The case was returned to the Board in January 2013, at which time the Board granted a 30 percent evaluation for the Veteran's bilateral pes planus, effective August 2, 2001, and remanded that claim for further development. That development having been completed, the case has been returned to the Board at this time for further appellate review. In correspondence dated in August 2008, the Veteran's representative directed the Board's attention to "the [V]eteran's contentions as stated on VA Form 9 indicating a desire to appear before the BVA Travel Board to state his/her contentions." However, a review of the claims file revealed that on her Form 9, the Veteran specifically checked that she did not want a BVA hearing. There is no other evidence in the claims file suggesting any Board hearing request. The Board notes that the Veteran and her representative had an opportunity to request a hearing as noted in the prior January 2013 remand, but that as of this time no request has been made. The Board finds that the issue before it is ripe for adjudication and will proceed to adjudication on the merits at this time without the benefit of a travel Board hearing. As previously noted in the January 2013 Board decision, the issues of entitlement to increased evaluations for migraines and bilateral ankle disabilities have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT The evidence of record does not demonstrate that the Veteran's bilateral pes planus was productive of pronounced pes planus, manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis, and lack of improvement by orthopedic shoes or appliances; the Veteran's bilateral pes planus is more closely approximate to severe bilateral pes planus throughout the appeal period. CONCLUSION OF LAW The criteria establishing an initial evaluation in excess of 30 percent for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's increased evaluation claim for bilateral pes planus arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as 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). Therefore, no further notice is needed under VCAA Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting her 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. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, her statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim herein decided. The Board acknowledges that the Veteran's case was previously remanded in January 2013 in order to obtain VA treatment records and to as the Veteran for information regarding Sacred Heart Hospital records. The VA treatment records through February 2013 have been associated with the Virtual VA eFolder; the Veteran has not responded to the January 2013 letter asking for information and a release request to obtain those Sacred Heart Hospital records. Therefore, the Board finds that its remand order has been substantially complied with, and it may proceed to adjudicate upon the merits of this case. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Background On July 2001 VA examination, the Veteran reported a history of swelling and pain with problems standing and not being able to run for a prolonged period of time. She also reported that she sometimes had "stiffness" in her feet, bilaterally. She has used orthotics; however, she still had pain on the arch of her foot with running. Physical examination showed that almost the entire arch was lost upon weight bearing with mild valgus (outward angulation) deformity. There was no point tenderness, effusion or erythema. The diagnosis was bilateral pes planus valgus, with the additional dysfunction of fatigability upon prolonged standing, running or performing contact sports. VA treatment records from the San Diego Health Care System included an August 2001 x-ray report that showed mild to moderate foot sag and minimal pes planus deformity. A September 2001 record revealed mild tenderness over the lateral malleolus/talofibular joint and pes planus with pain on inversion. The Veteran was fitted with arch supports. In December 2001, there was bilateral lateral midfoot prominence that was nontender to palpation. An April 2002 physical therapy evaluation revealed minimal edema of the bilateral feet and bilateral pes planus with collapsed arches. In January 2004, an examination of the feet revealed planus-valgus and pain was elicited in the sinus tarsi on the right foot with slight edema and increased temperature. On August 2003 VA examination, the examiner noted that there was no flat footedness (pes planus) or valgus deformities of the os calcis. The VA examiner stated there was normal 15 degrees of valgus angulation of both os calcis. Treatment records from the Biloxi VA Medical Center (VAMC) included a February 2007 physical therapy consult that revealed tenderness to palpation of the anterolateral part of the foot, bilaterally, which corresponded to the location of the anterior talofibular ligament. July and August 2007 records noted that the Veteran's prior orthotics were worn out. She reported pain and tenderness along the arches to the heel. On examination, there was a positive "pop along the medial arch of the affected foot to calcaneal tubercle" with 'hallux maximally dorsiflexed." No deformities were seen. The assessment included plantar fasciitis, bilateral lower extremity edema, and overpronation syndrome. On November 2007 VA examination, in regards to her feet, the Veteran reported pain, stiffness and weakness associated with standing for longer than 10 minutes. With walking, pain began at 100 meters and she must stop within one mile of walking. She reported that the inserts helped her. Physical examination revealed that the Patellar and Achilles tendons were 1+, bilaterally. There was no noted hypertrophy or atrophy. Tenderness was noted on both sides of the forefoot. There was equal sensation to pinprick and light touch. Toe-walk was done with pronation and heel-walk was done with pain. Pes planus was noted with 20 degrees pronation (inward turning). The Veteran had no Achilles misalignment, calluses, hammertoes, tissue loss, edema or erythema or unusual shoe wear. The examiner noted that additional limitation due to flare-ups could not be determined without speculation. No other deformities or instability was found. The diagnosis was bilateral congenital pes planus and hyperpronation with ankle symptomatology, but no objective instability. She was also diagnosed with calcaneal spurs. November 2007 X-rays of the feet revealed normal feet. The Veteran's history was reported as foot pain that improved in the past with "arch supports". In December 2008 the Veteran presented at Sacred Heart Hospital with a left toe injury. Physical examination of the left foot revealed no deformity, ecchymosis, erythema, swelling, puncture wounds, lacerations, or hematoma. The foot had full range of motion, sensory was intact, and there were no ulcerations. Tenderness to palpation, of the 5th left toe of the dorsal foot, was noted. No evidence was seen on X-rays, and mild soft tissue swelling was present about the lateral portion of the foot. There was no acute bony abnormality. Treatment records from Pensacola Outpatient Clinic (VA Gulf Coast Health Care System) showed that the Veteran underwent physical therapy beginning in December 2008 for her ankles, but that she also had complaints of foot pain. In September 2009, she was seen for an uncomfortable feeling on the arch of her foot. In January 2010, she underwent an evaluation for custom fit orthotics and was issued shoes in February and December 2010. In a May 2010 statement, the Veteran reported that she had constant pain and swelling on the arch area of both feet, especially when walking. She also had pronation and pain. In January 2011 she was seen for flatfoot with continued right arch pain. In January 2012, she had complaints that her shoe inserts were not working and that her feet were bothering her. A February 2012 X-ray revealed that in the non-weight-bearing position the arch appeared adequate, bilaterally. She was also diagnosed with bilateral hallux valgus deformity, bilaterally. On April 24, 2012 VA examination, the Veteran was diagnosed with bilateral pes planus. The Veteran reported that she currently wears bilateral shoe inserts, but she felt that they did not help her symptomology. She reported bilateral dorsomedial foot pain that is achy and occurs daily. Her daily pain was 5-6/10 that increased to 8.5/10 with flare-ups. Her right foot would swell more often than her right foot. Her foot pain increased with prolonged walking. She never had foot surgery or injections and was not currently prescribed any medications for the foot condition. She alternated applying heat and ice, which partially relieved the symptoms. She denied hospitalization or bedrest related to her feet. The examiner reported that the Veteran's bilateral feet presented with pain on use. There was not pain on manipulation, swelling on use, and characteristic calluses. Her symptoms were not relieved by arch support. There was not extreme tenderness of the plantar surface. The examiner further noted she did not have decreased longitudinal arch height on weight bearing, objective evidence of marked deformity of the feet (pronation, abduction, etc.), marked pronation of the foot, or weight bearing line that fell over or medial to the great toe. There was no inward bowing of the Achilles tendon. There was no deformity other than pes planus. She used orthotics. There was no functional impairment such that no effective function remained. X-rays revealed that the right arch was adequate, but the left arch showed a tendency towards pes planus. There was no evidence of arthritis. A May 2012 podiatry note included an assessment of flat feet for which new shoe gear was ordered. Molds for orthotics were taken in July 2012. VA treatment records from July and October 2012 demonstrate that the Veteran's feet did not demonstrate any distal pedal edema, erythema, or other deformity; her gait was normal. She received those orthotics in November 2012. A February 2013 treatment record noted that she was doing better with the fitted orthotics and that her feet felt better with the insoles in rather than out. Physical examination showed plantar fascial palpitation on the right yielded discomfort of the inferior medial calcaneal tuberocity without color, temperature or tumor. There was no discomfort to palpitation of the tarsal tunnel, posterior heel, lateral arch, or arch. She was assessed with improving plantar fasciitis of the bilateral feet; she had flat feet and lateral ankle impingement. In a November 2012 correspondence, the Veteran reported that she was issued the latest arch supports in November 2012. She also indicated that she experienced swelling on use, pain under manipulation and extreme tenderness of the plantar surface without any specific regularity, which may be why she did not exhibit these conditions during her examination. She also indicated that she had decreased longitudinal arch height on with bearing, and that her arch went very low with walking or stepping. Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 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 which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. § 4.45 (2012). The Veteran's bilateral pes planus has been evaluated as 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5276, effective August 2, 2001-the date following her separation from service. This disability was initially evaluated with the Veteran's bilateral ankle disability, but such has been separately evaluated. The Board will therefore not consider any bilateral ankle symptomatology in evaluation of her bilateral pes planus as such would be considered pyramiding. See 38 C.F.R. § 4.14 (2012). Pes planus is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, which provides a 30 percent evaluation for severe bilateral acquired flatfoot manifested by marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet, and characteristic callosities. A 50 percent rating is warranted for pronounced bilateral acquired flatfoot manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and which is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012). In this case, the Board notes that the Veteran's bilateral pes planus does not warrant a 50 percent evaluation throughout the appeal period. The Board notes that there is no extreme tenderness of the plantar surfaces throughout the appeal period, nor is there any evidence of marked inward displacement and severe spasm of the tendo achillis on manipulation. The Board acknowledges that the Veteran believes that her pronation is marked and serious and that her condition is not helped by orthotics. She is competent to make those statements and observations, but she is not a medical professional and therefore the Board notes that her competency in this case does not extend to whether her condition is objectively improved by orthotics or whether her pronation is marked in nature. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). The Board notes that the newest orthotics are shown in February 2013 to be improving her condition; moreover, the Board notes that there is pronation throughout the appeal period. In the January 2013 decision, the Board awarded a 30 percent disability evaluation based in part on this pronation being severe rather than pronounced. The Board has reviewed the evidence of record, including the notation of pronation to 20 degrees in the record. The Board concedes that there is a marked deformity of the Veteran's bilateral feet in this case. However, the severity of the symptomatology in this case is severe rather than pronounced. A marked deformity is an aspect shared by the criteria for the Veteran's current evaluation and a higher evaluation in this case. The Board has weighed that marked deformity along with the other manifested symptomatology in this case, and finds that the symptoms are more closely approximate to severe rather than pronounced. Finally, the Board has considered whether the Veteran should be evaluated under Diagnostic Code 5278 for bilateral pes cavus in this case; however, there is no evidence throughout the appeal period that the Veteran has bilateral marked contraction of the plantar fascia with a dropped forefoot, all toes hammertoes, very painful callosities, and a marked varus deformity. See 38 C.F.R. § 4.71a, Diagnostic Code 5278 (2012). The Board notes that none of the other applicable Diagnostic Codes allow for a disability evaluation in excess of 30 percent, and therefore none of those Codes are applicable in this case. See 38 C.F.R. § 4.71a, Diagnostic Codes 5277, 5279-84 (2012). In short, the Board finds that the demonstrated symptomatology throughout the appeal period with regards to the Veteran's bilateral pes planus is more closely approximate to severe bilateral pes planus rather than pronounced pes planus. Accordingly, the Board must deny an initial evaluation in excess of 30 percent for bilateral pes planus throughout the appeal period on the basis of the evidence of record at this time. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5276. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected bilateral pes planus, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. Finally, the Board has also considered whether a remand is necessary in order to determine whether the Veteran is entitled to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In this case, the evidence of record does not indicate that the Veteran is currently unemployed due to her bilateral pes planus, nor does the Veteran assert at any point throughout the appeal period that she is currently unemployed due to that disability. Since there is not any evidence of record that the Veteran's bilateral pes planus causes her to be unable to secure and follow substantially gainful employment, the Board finds that a remand for such an opinion is not required in this case. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to an initial evaluation in excess of 30 percent for bilateral pes planus is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs