Citation Nr: 1312643 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 09-11 006A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia ISSUE Entitlement to initial ratings in excess of 10 percent from June 21, 2004 to May 31, 2009, and in excess of 30 percent from June 1, 2009, for bilateral pes planus with plantar fasciitis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from March 1984 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating action in which the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia granted service connection for bilateral pes planus with plantar fasciitis and awarded a compensable rating of 10 percent, effective from June 21, 2004, for this disability. During the current appeal, and specifically by an October 2010 rating action, the RO granted an increased rating of 30 percent, effective from June 1, 2009, for this service-connected disability. In October 2011, the Veteran testified at a hearing conducted at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In February 2012, the Board remanded these claims, to obtain private treatment records identified by the Veteran and a VA examination. Most recently, in December 2012, the claims were remanded once again to obtain the same private treatment records requested via the February 2012 Board remand. Although it appears that the RO did not request the private treatment records as directed, the Veteran essentially indicated in a February 2013 statement that the Board was in possession of all available treatment records from this private medical facility. As such, the Board finds substantial compliance with the Board's Remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the December 2012 Remand, the Board noted that claims for service connection for leg, knee, and hip disorders, as secondary to the service-connected bilateral pes planus with plantar fasciitis, had been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). As no action appears to have been taken on this matter, and as the Board does not have jurisdiction over these additional claims, they are once again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. From June 21, 2004 to May 31, 2009, the bilateral pes planus with plantar fasciitis was severe and manifested by pain and swelling on use, and callosities. 2. Throughout the entire period on appeal, the bilateral pes planus with plantar fasciitis has been characterized as no worse than severe in nature. Despite subjective complaints of extreme tenderness of plantar surfaces, the evidence does not demonstrate pronounced symptoms including marked pronation, marked inward displacement, and severe spasm of the tendo Achilles on manipulation. CONCLUSIONS OF LAW 1. From June 21, 2004 to May 31, 2009, the criteria for a rating of 30 percent, but no higher, for bilateral pes planus with plantar fasciitis had been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.71a, Diagnostic Code (DC) 5276 (2012). 2. The criteria for a rating in excess of 30 percent for bilateral pes planus with plantar fasciitis have not been met for any portion of the appeal period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.71a, DC 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify Before addressing the merits of the issues on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, the Veteran's increased rating claim arises from his disagreement with the initial evaluations assigned following the grant of service connection. 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). Therefore, in the current appeal, no further notice is needed under VCAA. VA also has a duty to assist a Veteran in the development of the claims. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The AOJ obtained the Veteran's service treatment records. The Veteran also submitted personal statements in support of his appeal and private treatment records. Although additional outstanding private treatment records were identified at his October 2011 hearing, the Board remanded the claims, in February 2012 and December 2012, in part to obtain these records. The Board acknowledges that the AOJ did not attempt to obtain any additional records from Kaiser Permanente despite the Veteran submitting a VA Form 21-4142 in January 2013 to release these records. Nevertheless, the Veteran essentially indicated in a February 2013 statement that all records from this facility, pertinent to his increased rating claim, were already of record. The Board has additionally reviewed the Veteran's Virtual VA claims file. In this regard, the Board acknowledges that the Veteran submitted additional evidence after the issuance of the last supplemental statement of the case in February 2013. Most of this evidence is duplicative of evidence previously obtained, and considered by the AOJ. One document, a medical record dated in March 2013, indicates that the Veteran had been issued custom orthotics. While this report itself is new, the information contained therein (that the Veteran wears custom orthotics) is duplicative of information previously of record and considered by the AOJ. See, e.g., report of November 2009 VA examination, which reflects that the Veteran worse arch supports and shoe inserts. Accordingly, a remand to accord the AOJ an opportunity to readjudicate the Veteran's claim with consideration of this additional evidence is not necessary. Next, the Veteran was afforded VA examinations in November 2007, November 2009, and July 2012. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's bilateral pes planus with plantar fasciitis since the July 2012 VA examination. The Board finds the above VA examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disabilities under the applicable rating criteria. Accordingly, the Board finds that VA's duty to assist, with respect to obtaining a VA examination with respect to the issue on appeal, has been met. 38 C.F.R. § 3.159(c)(4). The Veteran was also provided an opportunity to set forth his contentions during the October 2011 hearing before the undersigned VLJ. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or VLJ who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the October 2011 hearing, the VLJ enumerated the issue on appeal. Information was also solicited regarding the severity of the Veteran's bilateral pes planus with plantar fasciitis. As noted above, potentially outstanding records were identified at the hearing, and the claim was subsequently remanded on two occasions in an attempt to obtain these records. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claims" were also fully explained. See Bryant, 23 Vet. App. at 497. The Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to the issue on appeal. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of this issue. 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). II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. The degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). In considering a disability's severity, it is essential to trace the veteran's medical history. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). At the outset, the Board notes that the Veteran is appealing the initial disability ratings assigned for his bilateral pes planus with plantar fasciitis. As such, the claims require consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). As alluded to, the bilateral pes planus with plantar fasciitis is currently rated as 10-percent disabling during the first period of the appeal, beginning June 21, 2004; and rated as 30-percent disabling since June 1, 2009. The RO assigned these ratings under 38 C.F.R. § 4.71a, DC 5276, for acquired flatfoot. In considering other applicable diagnostic codes, the Board finds that this is the most appropriate. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (indicating that any change in DC must be specifically explained). A 10 percent rating requires moderate bilateral acquired flatfoot where the weight bearing lines are over or medial to the great toes and there is inward bowing of the tendo Achilles and pain on manipulation and use of the feet. 38 C.F.R. § 4.71a, DC 5276. A 30 percent evaluation requires 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. Id. A 50 percent rating requires pronounced bilateral acquired flatfoot manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo Achilles on manipulation which is not improved by orthopedic shoes or appliances. Id. The words 'slight,' 'moderate,' and 'severe' as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. An August 2004 private treatment record noted that the Veteran was recommended arch support. Foot pain was noted on a March 2005 private treatment record. The Veteran's private treating podiatrist noted in a September 2005 letter that the Veteran was being treated with inserts, ice, stretching steroids and non-steroidal medication for his plantar fasciitis. An August 2007 private treatment record noted diffuse calluses on the entirety of the plantar aspect of his feet. In a September 2007 statement, the private treating podiatrist noted that the Veteran had a significant amount of painful calluses on the plantar aspect of both feet. It was also noted that the Veteran continued to have pain with plantar fasciitis. Arch supports were required at all times to alleviate pain. She additionally noted that the Veteran had pain on palpation of the plantar medical aspect of the heel. Pain and inflammation of the heels and arches was noted. Callosities over the entirely of the plantar aspect of both feet were also noted. The Veteran underwent a VA examination in November 2007. The Veteran reported experiencing a pain level of 8 out of 10. He indicated that it was relieved by rest and medication. Examination of both feet reflected tenderness. Painful motion, edema, disturbed circulation, weakness and atrophy of the musculature were not demonstrated in either foot. His gait was described as being within normal limits. Marked pronation was not demonstrated. It was noted that the Veteran did not require any type of support with his shoes. A March 2009 VA treatment record noted that the Veteran had chronic foot pain and had been using shoe inserts with some help. A June 2009 letter from the Veteran's private treating podiatrist noted that the Veteran had calluses that are painful on the medial aspect of both hallux from the propulsive stage of his gait cycle and dry and rough skin with diffuse calluses on the plantar aspect of both feet. It was noted that there was no abnormality in the gait cycle. She indicated that the Veteran was being treated with ice, stretching, cortisone injections, medication, and inserts over the past years to attempt to alleviate his pain. A June 2009 private treatment note reflected that the Cortisone injections had been helping the Veteran. The Veteran underwent another VA examination in November 2009. Physical examination at that time reflected gait within normal limits. Examination of the feet did not reveal any signs of unusual shoe wear pattern. For ambulation, it was noted that he requires a foot splint. Examination of the right and left feet revealed painful motion and tenderness. Edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness or instability were not observed in either foot. Palpation of the plantar surface of both feet revealed extreme tenderness. Alignment of the Achilles tendon was normal on both sides. Marked pronation was not observed in either foot. It was noted that the Veteran required arch supports and shoe inserts. It was noted that the symptoms of pain were not relieved by the corrective shoe wear. In a September 2010 letter the Veteran's private treating physician noted that the Veteran's service-connected condition had caused peroneal and posterior tibialis tendonitis. She noted that, in lieu of muscle spasms, the offloading of his painful heels has caused this persistent tendonitis. She indicated that the Veteran's calluses are painful on the medial aspect of both hallux from the propulsive stage of his gait cycle and dry and rough skin with diffuse calluses on the plantar aspect of both feet. She stated that there was no abnormality in the gait cycle. A July 2012 VA examination showed pain on the Veteran's use of his feet but not on manipulation of his feet. There was no indication of swelling on use. The VA examiner indicated that the Veteran did not have characteristic calluses. It was additionally noted that the Veteran's symptoms were not relieved by arch supports and that the Veteran did not have extreme tenderness of plantar surface of either foot. Marked pronation, inward bowing of the Achilles' tendon or marked inward displacement and severe spasm of the Achilles tendon were not observed. The VA examiner indicated that the Veteran's subjective complaints were inexplicably out of proportion to objective exam findings. No redness, swelling, heat, inflammation was noted on exam of the bilateral feet. She reflected that his pes planus was mild in nature. She noted mild pronation on standing and no bowing of the Achilles tendon. She additionally indicated there were no spasm of the tendons on manipulation and no abnormal calluses on the feet. She stated that the soles had whitish residuals from a fungus infection (tinea) which is not calluses. A small callus on the medial big toes of both sides was observed and there was no clinical evidence of tendonitis. Although gait was noted to be slow it was not obviously antalgic. She noted that although the Veteran reported pain after walking, he was able to go on his tiptoes, on his heels, do a one-legged stance, and hop on one leg each side without evidence of pain. The Veteran is competent to assert pain and swelling on use of his feet and callosities, even if these symptoms were not consistently noted on manipulation by the examiners. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Since the medical evidence does not directly refute these assertions, the Board concedes the credibility of his lay statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). His assertions of pain and swelling on use, and calluses, are probative evidence in support of the claim. The Board finds that the evidence above supports a higher rating of 30 percent between June 21, 2004 and May 31, 2009 (previously rated as 10-percent disabling by the RO). The relevant symptomatology shown throughout the entirety of the appeal period, which includes pain and swelling on use of the feet as well as characteristic callosities, are no worse than severe. 38 C.F.R. § 4.71a, DC 5276. Specifically, there is simply no indication that his bilateral pes planus with plantar fasciitis produces sufficient symptomatology to warrant a pronounced characterization of pes planus at any time during the appeal period. Although the Veteran asserts that orthopedic shoes or appliances do not alleviate his symptomatology he does not consistently manifest other symptoms appropriate for the higher (50 percent) rating. The fact that his shoe inserts do not relieve his pain symptoms does not by itself support a 50 percent rating. For instance, the weight of the evidence does not reflect pronounced bilateral acquired flatfoot manifested by marked pronation and marked inward displacement and severe spasm of the tendo Achilles on manipulation. The Board has considered that extreme tenderness of the plantar surfaces of the feet was observed at the November 2009 VA examination. However, the overall evidence of record throughout the appeal does not support these findings. Thus, resolving all reasonable doubt in the Veteran's favor, the Board assigns a 30 percent rating under DC 5276 during the entire period of the appeal, which effectively increases the first period of the staged rating (from June 21, 2004 to May 31, 2009) from 10 to 30 percent. The Board has considered the Veteran's statements regarding increased symptomatology. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating for his bilateral pes planus with plantar fasciitis. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, more probative than the Veteran's assessment of the severity of his disability. Thus, evidence of increased bilateral pes planus with plantar fasciitis has not been established, either through medical or lay evidence. The Board has also considered whether the Veteran is entitled to a referral for an extraschedular rating, which is a component of a claim for an increased rating under Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court recently clarified the analytical steps necessary to determine whether referral for such consideration is warranted. Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. Here, there has been no showing that the Veteran's disability picture could not be contemplated adequately by the applicable schedular rating criteria discussed above. His bilateral pes planus with plantar fasciitis was applied to the applicable rating criteria. Although the applicable criteria provide for higher ratings, the Board has fully explained why a rating in excess of 30 percent for his bilateral pes planus with plantar fasciitis is not warranted. The Board finds that his foot symptomatology is adequately contemplated by the rating criteria. Moreover, the evidence does not reflect that his bilateral pes planus with plantar fasciitis has caused marked interference with employment or frequent periods of hospitalization. In short, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible for his bilateral pes planus with plantar fasciitis, he has not submitted evidence of unemployability, or claimed to be unemployable. Although the record reflects that the Veteran switched employers, he reported at his most recent July 2012 VA examination that he was still employed. The claims file does not reflect any changes in this status. Thus, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In conclusion, the Board finds that the Veteran's disability picture regarding his bilateral pes planus with plantar fasciitis does not more nearly approximate a 50 percent disability evaluation. Further, the Board finds that the evidence, as detailed above, does not show distinct time periods exhibiting symptoms warranting staged evaluations. See Fenderson, supra. Consequently, the Board finds that a 30 percent disability rating, throughout the rating period on appeal, appropriately reflects the clinically established impairment experienced by the Veteran. ORDER A 30 percent rating, but no higher, for bilateral pes planus with plantar fasciitis, between June 21, 2004 and May 31, 2009, is granted, subject to the laws and regulations governing the award of monetary benefits. A rating in excess of 30 percent for bilateral pes planus with plantar fasciitis, for the entire period on appeal, is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs