Citation Nr: 1314435 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 06-07 087A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a compensable rating for bilateral pes planus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. Anderson, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1996 to September 2000. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Los Angeles, California Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for bilateral pes planus, rated 0 percent, effective October 29, 2004 (the date of claim). FINDINGS OF FACT The Veteran's bilateral pes planus is not shown to be more than mild in degree; weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet are not shown. CONCLUSION OF LAW A compensable rating for bilateral pes planus is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant 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; (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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As the June 2005 rating decision granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A March 2006 statement of the case (SOC) provided notice on the "downstream" issues of entitlement to an increased initial rating; and a July 2006 supplemental SOC (SSOC) readjudicated the matter. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); see also Shinseki v. Sanders, 556 U.S. 396 (discussing the rule of prejudicial error). The Veteran's service treatment records (STRs) and VA treatment records have been secured. He was afforded a VA examination in March 2005. While the Veteran asserts in his September 2005 notice of disagreement that he has the symptoms to satisfy a 10 percent rating, and requested another VA examination, the Board finds an examination is not needed. First, he has not alleged that his pes planus increased in severity since the March 2005 examination. Second, nothing in the record suggests that the March 2005 examination was inadequate. Instead, the examiner's report describes detailed findings that suffice for a proper assessment of the disability picture presented by the Veteran's flat feet. While he disagrees with the rating decision made based on the March 2005 VA examination report, he does not cite to any specific finding on that examination that is alleged to be inaccurate. Moreover, in March 2006 the Veteran indicated that he was not receiving any treatment for pes planus (as would be expected if the disability had increased in severity). As he is entitled to VA care for the disability, financial considerations would not appear to be a factor as to why no treatment is shown. Finally, the record includes various VA evaluation and treatment records subsequent to the March 2005 examination. None of these records (extending to February 2012) contains mention of complaints related to pes planus. The Board finds that the March 2005 VA examination is adequate for rating purposes as the examiner conducted a thorough examination, elicited complaints from the Veteran, and noted all clinical findings needed for proper consideration of this matter. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and an increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). Where (as here) the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disease. 38 C.F.R. § 4.45. Under Code 5276 (for pes planus), a 0 percent rating is warranted for mild flatfoot with symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent if unilateral, and 30 percent if bilateral. The only evidence of record related to the Veteran's pes planus disability postservice consists of a February 2005 VA treatment record and the March 2005 VA examination report. [In a February 2006 statement, the Veteran stated that he would submit medical evidence from his private doctor regarding his pes planus disability; but in a March 2006 statement, the Veteran stated that he had already sent VA all the records in his possession, which were received by VA in April 2006. The submitted records encompass treatment for his pes planus from 1996-1998-while he was in service-which predate the period under consideration]. In February 2005, the Veteran sought follow-up treatment for chronic low back pain. During that visit, he reported that he had been told he has flat feet, and that he was currently having bilateral foot pain, on and off; he requested x-rays of his feet. He reported he wears inserts, which seem to help. He also reported that his right foot had hurt very much the previous month, but that the pain had resolved. The diagnosis was likely plantar fasciitis. On March 2005 VA examination, the Veteran reported he has flat feet, which began bothering him after boot camp and that he was initially treated with Motrin. When the symptoms persisted, he was given insoles, which he said did not really help. He described having sharp pain on the bottom of his right foot. He found soft shoes to be more comfortable, and hard shoes and boots to be more painful; but he had pain no matter what kind of shoes he wore. He also reported that his feet and ankles get stiff after running, and that he found it hard to run any more because of the pain. The Veteran also reported that, while in service, he had pes planus and plantar fasciitis diagnosed, and was given a Cortisone injection, which provided no relief. Flare-ups of the foot problem consisted of pain but not weakness. He was able to walk or stand for about 30 minutes before needing to rest due to pain. He did not use a cane or brace, had not been incapacitated, and had not missed work (although with flare-ups he modified his work and stayed in a sitting position more often). He did not note any changes in his pain level during the day and had not had any foot surgery. On examination, it was noted that in the standing position the Veteran had loss of the longitudinal arch and valgus alignment of the hindfoot (that is easily passively correctable). There was no focal tenderness to palpation including at the insertion of the plantar fascia. There were no nodules in the plantar fascia with dorsiflexion of the great toe. Range of motion of the ankle is 20 - 45 degrees bilaterally with 10 degrees of hindfoot varus and valgus possible. There was no fixed deformity and range of motion was not decreased secondary to pain, weakness, fatigability, lack of endurance or lack of coordination. Strength of dorsiflexion and plantar flexion of the foot was normal (i.e., 5/5). Sensation of the feet was normal; there was no evidence of hammertoe or bunion. Tinel sign at the tarsal tunnel was negative, bilaterally, and there was no abnormal shoe wear pattern. X-rays showed a flattening of the foot but no degenerative changes. The diagnosis was bilateral planovalgus feet, but no evidence of plantar fasciitis or tarsal tunnel syndrome. The Veteran's overall disability picture associated with his bilateral pes planus is one of not more than mild. To warrant the minimal compensable(10 percent) rating, bilateral pes planus must be shown to be moderate, with such manifestations as objective evidence of weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet. Such manifestations are simply not shown. The Board acknowledges that the Veteran is competent to describe his observations of the disability, including the subjective symptoms he experiences, such as foot pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, although he claims he meets the criteria for a compensable rating, he does not point to/identify the specific manifestations of his bilateral flatfoot that would warrant such a rating. The most probative evidence regarding whether or not the Veteran's bilateral flatfoot has manifestations that warrant a 10 percent rating is the report of the March 2005 VA examiner. The medical findings reported then directly address the criteria under which pes planus is evaluated. No competent medical evidence has since been submitted to rebut the March 2005 examination report. The Board finds particularly noteworthy that during the more than seven years this claim has been pending, the Veteran's pes planus does not appear to have required any treatment. The Board has also considered whether referral of this matter for extraschedular consideration is warranted. There is no objective evidence (or specific allegation) of symptoms and/or impairment due to bilateral pes planus not encompassed by the 0 percent rating assigned. The limitations the Veteran reports, such as difficulty running or with prolonged walking or standing, are encompassed by the schedular criteria. Therefore, those criteria are adequate, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, a February 2005 VA treatment record notes that the Veteran was working two jobs. On September 2011 VA examination (for another disability), it was noted that he actively engaged in bodybuilding and was very muscular. There is nothing in the record to suggest, nor is it alleged, that his bilateral pes planus renders him unemployable. Therefore, the matter of entitlement to a total disability rating based on individual unemployability is not raised in the context of this claim. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for a compensable rating for the Veteran's bilateral pes planus. Hence, the benefit of the doubt rule (38 U.S.C.A. § 5107(b)) does not apply. The appeal in this matter must be denied. ORDER A compensable rating for bilateral pes planus is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs