Citation Nr: 1313332 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 09-05 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating for bilateral flat feet, rated as 10 percent disabling prior to February 7, 2012, and as 30 percent disabling since February 7, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from September 1975 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at a hearing before before a Decision Review Officer (DRO) at the RO in December 2008. The Veteran also testified at a hearing before the Board in September 2011. The Board remanded the Veteran's claim for additional development in December 2011. A February 2012 rating decision assigned a 30 percent rating for the Veteran's bilateral flat feet, effective February 7, 2012. However, that was not a full grant of the benefit sought and the issue of increase remains on appeal. AB. v. Brown, 6 Vet. App. 35 (1993). The Veteran was also granted service connection for degenerative joint disease (DJD) of the left and right ankles related to the service-connected bilateral flat feet and awarded noncompensable ratings, effective February 7, 2012. The Veteran has not expressed disagreement with the rating assigned for the left and right ankle DJD. The Board notes that although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has specifically testified that he is not seeking individual unemployability due to his service-connected bilateral flat feet disability. Therefore, 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). The issue of entitlement to an extraschedular evaluation(s) for bilateral flat feet is addressed in the REMAND portion of this decision. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. Prior to April 12, 2011, the Veteran's service-connected bilateral flat feet were manifested by complaints of pain and objective evidence of tenderness; his condition was not manifested by marked deformity, callosities, or marked inward displacement and severe spasm of the tendo achillis on manipulation, and was no more than "moderate" in degree. 2. Since April 12, 2011, the Veteran's service-connected bilateral flat feet are manifested by complaints of pain and objective evidence of tenderness; his condition is manifested by marked deformity and is "severe" in degree. CONCLUSIONS OF LAW 1. Prior to April 12, 2011, the criteria for the assignment of a schedular rating in excess of 10 percent for bilateral flat feet have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2012). 2. Since April 12, 2011, the criteria for the assignment of a schedular rating of 50 percent for bilateral flat feet have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in November 2006, October 2008, and December 2011. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the February 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Factual Background The Veteran claims that his service-connected flat feet warrant an increased rating. At an August 2007 VA examination, the Veteran reported bilateral foot pain from his arch to his heel with swelling at times. He denied treatment or hospitalizations for his feet. Physical examination of the left and right feet revealed no objective evidence of painful motion, tenderness, instability, or weakness and no objective evidence of swelling of the right foot but swelling of the arch and heel of the left foot was noted. There was inward bowing bilaterally correctable with manipulation with no pain on manipulation. There was no forefoot malalignment, midfoot malalignment, and no pronation. There was no objective evidence of any other foot deformity. The Veteran's gait was reported to be normal with no tenderness on palpation of the arches of the bilateral feet. X-rays of the left and right foot revealed pes planus. The examiner indicated that the Veteran was employed as a nurse's assistant part-time with no problems and no days of work lost in the past twelve months due to his bilateral foot disability. The examiner reported that the Veteran's service-connected bilateral flat feet had no significant effects on his general occupation. At a December 2008 hearing before a DRO, the Veteran testified that his job at a nursing home required a lot of walking and standing and he often had to rest due to foot pain. He indicated that he missed work for foot swelling at times. The Veteran reported that he only wears sneakers because shoes hurt his feet. He stated that he has been written up at work for not performing his job duties and that he is often assigned sedentary jobs to accommodate his foot disability. The Veteran testified that his foot disability has hindered his promotion potential at work. At a January 2009 VA examination, the Veteran reported pain, swelling, fatigability, and lack of endurance. He indicated that he is able to walk one-quarter of a mile and stand for fifteen to thirty minutes. The Veteran uses a cane for increased pain especially of the left foot with prolonged weightbearing. Physical examination of the left foot revealed evidence of painful motion, swelling, tenderness, weakness, and abnormal weight bearing and no evidence of instability. There was no skin or vascular foot abnormality and normal weight bearing, normal midfoot alignment, and no pronation. There was pain with dorsiflexion. Physical examination of the right foot revealed evidence of abnormal weight bearing and no evidence of painful motion, tenderness, and weakness. There was no skin or vascular abnormality, normal weight bearing, normal forefoot alignment, normal midfoot alignment, and no pronation. There was no pain on manipulation. The Veteran was noted to walk with a crutch to take weight off his painful feet three times a week. The examiner indicated that the Veteran's bilateral foot disability had significant effects on his occupational activities. The Veteran was noted to work as a nurse's aide part-time and he indicated that had not lost any time from work in the past twelve months due to his foot disability. At a September 2011 hearing before the Board, the Veteran indicated that he did not wish to raise a claim of individual unemployability as part of his claim for an increased rating. The Veteran testified that his feet have gotten worse over the years. He indicated that his foot symptomatology consists of constant swelling. He indicated that he also uses inserts for his sneakers and he has different inserts for different shoes. The Veteran reported that he was able to walk one city block without pain and that he uses a cane for stability. The Veteran indicated that he no longer works as a nurse's aide due to his foot disability. He indicated that he receives treatment for his feet at VA. His spouse testified that she takes care of most household duties and that the Veteran is unable to play with his children for long periods of time or take walks due to his foot disability. The Veteran testified that his left foot symptomatology is worse than his right and he has discolored skin on his ankles. At February 2012 VA examination, the Veteran reported bilateral foot pain causing ankle pain. The Veteran indicated that he stopped working as a nurse's aide three years prior to the examination. He reported that he was required to do much of the heavy lifting at work and his foot disability impeded his ability to perform his job. The Veteran reported that orthotics slightly alleviated his ankle and foot pain. Physical examination revealed pain on use and on manipulation of both feet, swelling on use of both feet, and no characteristic calluses. The Veteran's symptoms were not relieved by arch supports and there was not extreme tenderness of the plantar surface of both feet. The Veteran had decreased longitudinal arch height and there was objective evidence of marked deformity of the foot bilaterally. There was marked pronation of the feet and the condition is improved with orthopedic shoes. The examiner noted that the weight-bearing line fell over or was medial to the great toe bilaterally. There was bilateral inward bowing of the Achilles tendon bilaterally and marked inward displacement and severe spasm of the Achilles tendon was improved with orthopedic shoes or appliances. The Veteran was noted to ambulate with a cane regularly and with bilateral orthotic inserts constantly. The examiner indicated that the Veteran's bilateral flat feet impact his ability to work because of severe inward pronation of both feet which has caused increasing pain. The examiner noted that most flat feet are mild but the Veteran is an exception with severe flat feet causing severe inward pronation of both feet and secondary abnormal pressure on both ankles resulting in mild DJD. The examiner indicated that the Veteran's pain and functioning have become gradually worse and resulted in the Veteran's inability to be gainfully employed to work as a certified nursing assistant (CNA). The Veteran was noted to be able to perform sedentary work but was not trained for any type of sedentary work. VA outpatient treatment reports reflect that the Veteran reported swelling of the feet in November 2010. In January 2011, the Veteran's feet were scanned for custom orthotics. On April 12, 2011, a podiatrist documented severe pes planus and severe pronation due to pes planus. The Veteran's shoes were fitted with orthotics at that time. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7. Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The Veteran's bilateral flat feet have been rated under Diagnostic Code 5276 which pertains to acquired flatfoot. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012). Under Diagnostic Code 5276, a 10 percent evaluation is for application when there is moderate disability evidenced by weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet bilaterally or unilaterally. A 30 percent evaluation is for application when there is severe bilateral disability evidenced by marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent evaluation is for application when there is pronounced bilateral disability evidenced by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, which is not improved by orthopedic shoes or appliances. The Board must also consider factors such as lack of normal endurance, functional loss due to pain, and pain on use, including pain during flare-ups. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Period prior to April 12, 2011 Based on a review of the relevant evidence, and the applicable law and regulations, it is the Board's conclusion that the preponderance of the evidence is against the assignment of a schedular rating in excess of 10 percent for bilateral flat feet for the period prior to April 12, 2011. Although the Veteran has consistently described experiencing pain and there is objective evidence of pain, tenderness, weakness, and abnormal weight bearing, the record does not show that his condition is manifested by objective evidence of marked deformity. For the relevant time period, the record is devoid of any evidence of callosities, and there is no indication of marked inward displacement and severe spasm of the tendo achillis on manipulation. In the absence of manifestations required for a higher evaluation, the Board finds that the weight of the evidence is against the assignment of a higher schedular evaluation for the time period prior to April 12, 2011. The Board has also considered whether application of any other Diagnostic Codes is appropriate. However, as the Veteran's disability has not been manifested by bilateral weak foot, acquired claw foot, anterior metatarsalgia, unilateral hallux valgus, severe unilateral hallux rigidus, hammer toe, malunion or nonunion of the tarsal or metatarsal bones, or other foot injuries, Diagnostic Codes 5277-5284 are not for application. 38 C.F.R. § 4.71a. Period from April 12, 2011 Based on a review of the relevant evidence, and the applicable law and regulations, it is the Board's conclusion that the Veteran's flat feet warrant a 50 percent rating from April 12, 2011. The VA outpatient treatment reports reflect that the Veteran's bilateral flat feet were described as severe with severe pronation in April 2011. The February 2012 VA examiner indicated that the Veteran had pain on use and on manipulation of both feet and swelling on use of both feet. The Veteran's symptoms were not relieved by arch supports, there was objective evidence of marked deformity of the foot bilaterally, and marked pronation of the feet improved with orthopedic shoes. The examiner described the Veteran's bilateral flat feet disability as severe. Although the evidence does not reflect characteristic callosities, the Veteran's symptomatology for his service-connected bilateral flat feet more closely approximates the criteria for a 50 percent rating from April 12, 2011. The Board notes that 50 percent is the maximum schedular benefit under Diagnostic Code 5276. 38 C.F.R. § 4.71a. ORDER Entitlement to a rating in excess of 10 percent for bilateral flat feet prior to April 12, 2011, is denied. Entitlement to a 50 percent rating for bilateral flat feet from April 12, 2011, is granted, subject to controlling regulations applicable to the payment of monetary benefits. REMAND A review of the claims file reveals that a remand is necessary with regard to the issue of whether extraschedular consideration is warranted in this case. The Board notes that it is generally provided that the rating schedule will represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from a service-connected disability. 38 C.F.R. § 3.321(a) (2012). In the exceptional case, however, where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b). The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (2012). At the Veteran's most recent VA examination in February 2012, the examiner specifically found that the Veteran's pain and function due to his severe flat feet gradually deteriorated to the point that he is unable to perform gainful employment as a certified nursing assistant. The examiner concluded that the Veteran could perform sedentary work but he is not trained for any type of sedentary work and is handicapped by virtue of his age in hiring. Consequently, the Veteran's case should be submitted to either the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of the assignment of an extraschedular rating for the Veteran's service-connected bilateral flat feet. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claim for an increased rating for bilateral pes planus to the Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) (2012). 2. Then, readjudicate the claim. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs