Citation Nr: 1312469 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 09-16 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for bilateral pes planus prior to August 17, 2012, and in excess of 30 percent thereafter. 2. Entitlement to a compensable disability rating prior to August 17, 2012, and in excess of 10 percent thereafter, for right foot hallux valgus. 3. Entitlement to a compensable disability rating prior to August 17, 2012, and in excess of 10 percent thereafter, for left foot hallux valgus. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from August 1983 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In an April 2009 rating decision, the RO granted service connection for patellofemoral syndrome of the bilateral knees and assigned separate noncompensable evaluations for each knee, effective December 10, 2007. The action constituted a full grant of the benefits sought, and the claim for service connection for a bilateral knee disorder is no longer pending appellate review. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). In May 2012, the Board remanded the claim for further development which included affording the Veteran an additional foot examination in August 2012. Based on the findings from that examination, the Appeals Management Center (AMC) increased the rating for bilateral pes planus to 30 percent, and increased separate ratings to 10 percent for bilateral hallux valgus, all effective from August 17, 2012. Applicable law mandates that when a Veteran seeks an increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Prior to August 17, 2012, the Veteran's bilateral pes planus was no more than moderate in nature, manifested by pain on manipulation and use. There was no objective evidence of marked deformity, swelling on use, or characteristic callosities on either foot. 2. Since August 17, 2012, the Veteran's bilateral pes planus has been productive of marked pronation and extreme tenderness of plantar surfaces of the feet, but without marked inward displacement and severe spasm of the tendo achillis on manipulation. 3. Prior to August 17, 2012, the Veteran's bilateral hallux valgus was not severe in nature, and he had not undergone resection of the metatarsal heads. 4. Since August 17, 2012, the Veteran's bilateral hallux valgus has been severe in nature, with its function equivalent to amputation of the great toes. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent prior to August 17, 2012, and a rating in excess of 30 percent since August 17, 2012, for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5701(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5276 (2012). 2. The criteria for a compensable rating prior to August 17, 2012, and a rating in excess of 10 percent since August 17, 2012, for right hallux valgus have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.7, 4.71a, Diagnostic Codes 5280 (2012). 3. The criteria for a compensable rating prior to August 17, 2012, and a rating in excess of 10 percent since August 17, 2012, for left hallux valgus have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.7, 4.71a, Diagnostic Codes 5280 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant 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, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all elements of a claim, including the disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has found that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). With regard to the notice requirements pertaining to increased-rating claims, there need only be generic notice advising the Veteran of the evidentiary and legal criteria for establishing his entitlement to a higher rating, not also citation to alternative diagnostic codes (DCs) or potential "daily life" evidence, etc. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). An RO pre-adjudication letter was sent to the Veteran in February 2008 which apprised him of the type of evidence and information needed to substantiate his increased rating claims for bilateral pes planus and bilateral hallux valgus, and of his and VA's respective responsibilities in obtaining this supporting evidence. That letter also advised him as to how disability ratings and effective dates are assigned. An additional VCAA notice letter was sent to him in late-May 2012 following the Board's remand, and that letter also contained the types of evidence and information needed to substantiate his increased rating claims. These claims were readjudicated in a January 2013 SSOC, and as mentioned, the ratings assigned for pertinent disabilities were increased, effective August 17, 2012, in the March 2013 rating decision. VA also has a duty to assist him in fulfilling developing the evidence concerning his claims. This duty includes assisting him in the procurement of records and, when necessary, providing an examination. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains the Veteran's service treatment records, as well as his post-service VA and private medical evaluation and treatment records. He also has had VA compensation examinations assessing and reassessing the severity of his bilateral pes planus and hallux valgus. Neither the Veteran nor his representative has identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of the claims being decided herein that has not been obtained. In fact, in response to the latest SSOC, the Veteran, in February 2013, indicated that he had no additional evidence regarding his appeal and asked that his case be forwarded to the Board immediately. No further notice or assistance to him with his claims 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). Claims for Higher Ratings Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2 (2012). If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Although a Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1 (and see Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991)), 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). A Veteran 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Foot disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5276 to 5284. 38 C.F.R. § 4.71a (2012). Applicable here, Diagnostic Code 5276 contemplates acquired flatfoot, also referred to as pes planus. A noncompensable rating is assigned for mild flatfoot where the symptoms are relieved by a built-up shoe or arch support. A 10 percent disability rating is assigned for unilateral or bilateral moderate flatfoot, where there is evidence that the weight bearing line is over or medial to the great toe, there is inward bowing of the tendo achillis, and pain on manipulation and use of the foot or feet. Where flatfoot is severe and there is objective evidence of a marked deformity (pronation, abduction, etc.), pain on manipulation and use is accentuated, there is indication of swelling on use, and characteristic callosities, a higher rating of 30 percent disability rating is assigned for the bilateral feet. A 50 percent disability rating is assigned for bilateral pronounced flatfoot. Pronounced flatfoot must reveal marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and is not improved by orthopedic shoes or appliances. Diagnostic Code 5280 contemplates hallux valgus. Unilateral hallux valgus that is severe, if equivalent to amputation of great toe, is rated 10 percent disabling. Unilateral hallux valgus that has been operated upon with resection of metatarsal head is also rated 10 percent disabling. The maximum schedular rating allowed under this code is 10 percent. Descriptive words such as "slight" (or "mild"), "moderate", "moderately severe" and "severe" are not defined in VA's Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. §§ 4.2, 4.6. In evaluating disabilities rated on the basis of limitation of motion, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the 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. 38 C.F.R. § 4.59. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). An August 2007 VA primary care initial evaluation note shows an assessment of flat feet. A podiatric consultation note dated in September 2007 shows the Veteran's report of bilateral foot pain. Painful feet were assessed, in pertinent part. Custom orthotic impressions were taken. Later in December 2007, he underwent a VA-sponsored "QTC" examination of his feet. His feet revealed no weakness, edema, atrophy or disturbed circulation. There was painful motion and tenderness of the right and left first MTP. There was active motion in the metatarsophalangeal joint of both great toes. His gait was within normal limits. Pes planus was present. There was no valgus present on the right or left foot. The feet showed no forefoot/midfoot malalignment. There was no deformity, bilaterally, such as inward rotation of the superior portion of the os calcis, medial tilting of the upper border of the talus, or marked pronation or the whole foot everted. There was no tenderness to palpation of the plantar surfaces of either foot. Both Achilles tendon revealed good alignment. Pes cavus, Morton's metatarsalgia, hammertoes, and hallux rigidus, were not present. Hallux valgus was present, bilaterally; the degree of angulation was slight with no resection of the metatarsal head present. The Veteran did not have any limitation with standing or walking. He required arch supports, but no orthopedic shoes, corrective shoes, foot supports, build-up of the shoes or shoe inserts. His symptoms and pain were not relieved by the arch supports. X-rays of the feet showed pes planus and hallux valgus, bilaterally. Diagnoses were bilateral pes planus and bilateral hallux valgus. On VA examination in August 2012, the Veteran reported bilateral foot pain on use and manipulation, swelling on use, and extreme tenderness of plantar surfaces, not improved by orthopedic shoes or appliance. He had a decreased longitudinal arch height on weight bearing, bilaterally. There was marked pronation of both feet, not improved by orthopedic shoes or appliances. His weight bearing line fell over or medial to his great toes. The examiner also indicated that bilateral hallux valgus caused alteration of the weight bearing line on both sides. He had inward bowing of the Achilles tendons. There was no marked inward displacement or severe spasms of the Achilles tendons on manipulation. It was noted that the Veteran uses custom-made foot orthotics on a constant basis. Bunion deformities are present on both feet. On the right, his hallux valgus angled at 28 degrees upon non-weight bearing. The first MPJ (metatarsal phalangeal joint) of the great toe had dorsiflexion of 20 degrees, and plantar flexion of 26 degrees with pain. On the left, his hallux valgus angled at 24 degrees upon non-weight bearing. The first MPJ of the left great toe has dorsiflexion to 20 degrees, and plantar flexion to 22 degrees with pain. The Veteran's flatfeet impact his ability to work in that he has to send another worker to meetings that involve a lot of walking. He also stated that he has to rest his feet at work by taking off his shoes. The examiner concluded that the Veteran's feet have severe pronation on weight bearing; his Achilles tendons have in-bowing on non-weight bearing and weight bearing, and are painful on palpation. Also noted were slight calluses seen on the medial aspect of the first MPJ of the great toes. After assessing the Veteran's hallux valgus, the examiner indicated that the Veteran's function due to such condition is the equivalent to amputation of the great toe. Bilateral Pes Planus The RO has rated the Veteran's bilateral pes planus as 10 percent disabling prior to August 17, 2012, and as 30 percent disabling thereafter, under Diagnostic Code 5276. After considering the Veteran's complaints, examination findings, and treatment records, the preponderance of the evidence is against finding that the service-connected bilateral pes planus may be assigned a higher rating during the appeal period. Prior to August 17, 2012, his bilateral pes planus disability was primarily manifested by subjective complaints of pain on use and manipulation, which is contemplated by previously assigned 10 percent disability rating. The cumulative objective evidence, to include the December 2007 VA examination, does not reflect a gait abnormality, marked deformity, swelling on use, or characteristic callosities, such that a rating in excess of 10 percent is warranted prior to August 17, 2012. In the absence of objective evidence of severe bilateral pes planus, a higher rating of 30 percent is not warranted prior to August 17, 2012. The Veteran's bilateral pes planus increased in severity to meet the criteria necessary to support a 30 percent rating, effective August 17, 2012, based on objective evidence of marked pronation and extreme tenderness of the plantar surfaces of the feet. However, as indicated by the August 2012 VA examiner, there is no evidence of marked inward displacement and severe spasm of the tendo achillis on manipulation. The criteria for a higher and maximum rating of 50 percent under Diagnostic Code 5276 have not been met or more nearly approximated. The Board notes further that because the criteria set forth in Diagnostic Code 5276 are not based upon limitation of motion, it is not necessary to consider 38 C.F.R. §§ 4.40 and 4.45. Bilateral Hallux Valgus The RO has separately rated the Veteran's service-connected bilateral hallux valgus as zero percent (noncompensably) disabling prior to August 17, 2012, and as 10-percent disabling thereafter, under Diagnostic Code 5280. After considering the Veteran's complaints, examination findings, and treatment records, the preponderance of the evidence is against finding that the service-connected bilateral hallux valgus may be assigned a higher rating during the appeal period. Prior to August 17, 2012, the Veteran had not undergone metatarsal head resection. During the December 2007 VA examination, the Veteran's hallux valgus angulation was only slight and he had no functional limitations in terms of standing or walking. The criteria for separate compensable ratings are not met for bilateral hallux valgus prior to August 17, 2012. As indicated, the VA examiner in August 2012 determined the Veteran's bilateral hallux valgus to be severe, and its function equivalent to amputation of the great toes, and such an increase in severity is contemplated in the separate 10 percent ratings currently assigned. Because, as mentioned, a 10 percent rating is the maximum schedular rating available under Diagnostic Code 5280, a higher rating is not available under such code. Additionally, where, as here, a disability has been rated at the maximum level provided by the diagnostic code under which it is rated, the considerations of DeLuca do not apply. See Johnston v. Brown, 10 Vet. App. 80 (1997) (remand for consideration of functional loss of range of motion of a wrist due to pain inappropriate where rating currently assigned for limitation of motion was maximum available under the applied diagnostic code); VAOPGCPREC 36-97. The Board considered whether other diagnostic codes are applicable to either the Veteran's bilateral pes planus or bilateral hallux valgus; however, he is not service-connected for a weak foot, claw foot, metatarsalgia, hallux rigidus, hammer toes, malunion or nonunion of the tarsal or metatarsal bones, or a foot injury, nor are these disabilities shown by the evidence. Thus, Diagnostic Codes 5277, 5278, 5279, 5281, 5282, 5283, and 5284 are inapplicable. For the reasons and bases shown above, the Board finds that the overall disability pictures for the Veteran's bilateral pes planus and bilateral hallux valgus do not more closely approximate the criteria for higher ratings under the applicable Diagnostic Codes. 38 C.F.R. § 4.7. Therefore, the preponderance of the evidence is against these claims, and they must be denied. 38 C.F.R. § 4.3. The Board considered whether referral for an extraschedular rating is appropriate. See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran's manifestations of bilateral pes planus, to include, pain on use and manipulation, marked pronation, extreme tenderness of the plantar surfaces of the feet, are contemplated by the applicable schedular criteria. Similarly, the manifestations of the Veteran's hallux valgus, to include the degree of hallux valgus angulation, are contemplated by the applicable schedular criteria. There is nothing in the examination reports or other records that suggest the symptoms are exceptional or outside the realm of the rating criteria. In sum, there is no indication that the average industrial impairment from his bilateral pes planus and/or right and left foot hallux valgus would be in excess of that contemplated by the assigned ratings. Accordingly, the Board has determined that the rating criteria are adequate. The criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) have not been met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised under Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has not alleged and the evidence does not suggest that he is unemployable because of his service-connected pes planus and/or hallux valgus, meaning incapable of obtaining and maintaining substantially gainful employment because of this disability. During the August 2012 VA compensation examination, he affirmed that he is currently employed. Therefore a TDIU claim as concerning his pes planus and/or hallux valgus has not been inferred. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001). See, too, Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009) (requiring cogent evidence of unemployability). ORDER A disability rating in excess of 10 percent prior to August 17, 2012, an in excess of 30 percent since August 17, 2012, for bilateral pes planus is denied. A compensable rating prior to August 17, 2012, and a rating in excess of 10 percent since August 17, 2012, for right foot hallux valgus is denied. A compensable rating prior to August 17, 2012, and a rating in excess of 10 percent since August 17, 2012, for left foot hallux valgus is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs