Citation Nr: 1318665 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 07-16 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial compensable disability rating for bilateral pes planus with hallux valgus and left heel spur. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from August 1979 until his retirement in August 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. This case was previously before the Board, most recently in October 2012, at which time the issue currently before the Board was remanded for additional development. The case has now been returned to the Board for further appellate action. FINDING OF FACT Bilateral pes planus with hallux valgus and left heel spur is manifested by mild symptoms and subjective complaints of pain on prolonged use and is not productive of weight-bearing over or medial to the great toe, inward bearing of the tendo Achilles, or pain on manipulation of the feet. CONCLUSION OF LAW The criteria for an initial compensable disability rating for bilateral pes planus with hallux valgus and left heel spur have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was a member of the Benefits Delivery at Discharge program (BDD). In March 2005, the Veteran was provided with notice advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. In May 2009, the Veteran was mailed a letter which provided him with appropriate notice with respect to the disability-rating and effective-date elements of his claim. Although the Veteran was not provided adequate notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development the claim was readjudicated. There is no indication or reason to believe that the ultimate decision on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file and the Veteran has been afforded appropriate VA examinations. The Board notes that in the October 2012 remand, the Board directed that the Veteran be afforded a VA examination to determine the current level of severity of all impairment resulting from his service-connected bilateral pes planus. Specifically, the Board noted that the Veteran had been diagnosed with degenerative arthritis in his great toes and found that an examination was necessary to determine whether the great toe arthritis was etiologically related to the Veteran's service-connected pes planus with hallux valgus and left heel spur. Additionally, the Board found examination necessary to determine whether the symptoms of the Veteran's pes planus with hallux valgus and left heel spur could be medically distinguished from those symptoms related to the diagnosed great toe arthritis. A review of the record shows that the Veteran was scheduled for the directed examination in December 2012. However, the Veteran failed to report for the scheduled examination without explanation and the examination request was subsequently canceled. In a February 2013 Supplemental Statement of the Case (SSOC), the Veteran was informed that as a result of his failure to report for his scheduled VA examination, the claim on appeal would be decided based on the evidence of record. The Veteran has not indicated that he would like the opportunity to report for another VA examination. Therefore, the Board finds that the development conducted is in compliance with the directives of the October 2012 remand and there is no bar to proceeding with a final decision at this time. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the 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. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 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. Pes planus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276. Under this code a noncompensable disability rating is warranted for mild symptoms of pes planus relieved by built-up shoe or arch support. A 10 percent disability rating is warranted for moderate pes planus, unilateral or bilateral; manifested by weight-bearing over or medial to the great toe, inward bearing of the tendo Achilles, and pain on manipulation and use of the feet. A 20 percent disability rating is warranted for unilateral severe pes planus. Severe pes planus is manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated indication of swelling on use, and characteristic callosities. A 30 percent disability rating is warranted for severe bilateral pes planus. A 30 percent disability rating is also warranted for pronounced unilateral pes planus. Pronounced pes planus is manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, and the symptoms are not improved by orthopedic shoes or appliances. A 50 percent disability rating is warranted for pronounced bilateral pes planus. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. In April 2005, the Veteran was afforded a VA examination. At that time, the Veteran reported that both his feet had been bothering him since 2000. He reported that he experienced pain, stiffness, swelling, and fatigue. He reported that these symptoms occurred while resting, standing, and walking. He denied undergoing any surgery for his feet. The Veteran reported that his foot symptoms limited his ability to walk and that he missed work once a week as a result of his foot symptoms. Upon physical examination of the Veteran's feet, there were no findings of painful motion. There was no edema, disturbed circulation, weakness, atrophy, or tenderness. There was no pes planus, pes cavus, hammer toes, Morton metatarsalgia, hallux valgus, or hallux rigidus. There was no obvious limitation of function for standing or walking. There was no obvious use of corrective shoe wear. X-rays of the feet revealed bilateral hallux valgus, but no significant pes planovalgus deformity of the feet. There was no bunion or stress injury within the metatarsals. There was a small plantar heel spur on the left foot noted. The examiner diagnosed bilateral hallux valgus with heel spur syndrome. In the October 2005 rating decision, the Veteran was granted entitlement to service connection for bilateral pes planus with hallux valgus and left heel spur. The disability was assigned a noncompensable disability rating. In October 2007, the Veteran was afforded another VA examination. At that time, the Veteran reported that his foot symptoms had not changed at all since his April 2005 VA examination. He reported that his feet continued to be painful and that he did, at times, experience a tingling sensation in his right foot. The Veteran reported that his feet were stiff, hot, and fatigued easily. The Veteran denied any weakness, swelling, or redness in his feet. He reported that he experienced an increase in the right foot tingling sensation while at rest and with prolonged sitting. The examiner specifically noted that the complaints of tingling and numbness in the feet were due to the Veteran's back disability and not a foot disability. The Veteran reported that his foot pain intensified with both standing and walking and that he was limited to standing for no more than 5-10 minutes at a time and limited to walking for no more than five minutes at a time. The Veteran reported that he treated his foot pain with over-the-counter medication and that the treatment did help a little. The Veteran reported that he experienced painful flare-ups of his foot pain approximately 4-5 times per week and the flare-ups would last anywhere from 3-5 days at a time. He reported that his flare-ups were usually precipitated by prolonged walking and that they were alleviated by rest and using the over-the-counter medication noted above. The Veteran denied use of any assistive devices, corrective shoes, or shoe inserts. The Veteran reported that he avoided activities that aggravated his foot pain and reported that he was no longer able to play golf. He reported that he did continue to hunt and fish, but that he was limited in the length of time he was able to stand and walk. Upon physical examination of the Veteran's feet, there was no joint deformity, deviation, inflammation, discoloration, or callus formation. Achilles alignment was within normal limits and negative for pain on manipulation. The Veteran had bilateral pes planus with and without weight bearing. There was normal range of motion of the feet, bilaterally. There was no change in function upon repetition. There were no corns or other lesions on the feet. The Veteran was able to rise to his toes and his heels and there was no evidence of painful motion, edema, weakness, instability, or tenderness noted. There was no evidence of abnormal weight bearing. The examiner diagnosed bilateral pes planus with hallux valgus and left heel spur. In November 2010, the Veteran was afforded another VA examination. At that time, the Veteran reported that he has continued to experience foot pain since his last VA examination. He reported that the right foot was worse than the left foot and described the pain as tingling. He reported that both feet would become hot, achy, and fatigued easily. The Veteran denied swelling, weakness, and redness. He reported that he experienced an increase in the tingling sensation in his feet at rest and upon prolonged sitting. The examiner noted that the reported tingling sensation was actually radiating back pain. The Veteran reported that his feet would grow numb at times and that standing and walking intensified his foot pain. The Veteran reported that he was limited to standing for no more than 5-10 minutes at a time and was limited to walking for no more than five minutes at a time because of his foot pain. The Veteran reported that he continued to treat his foot pain with over-the-counter medication. The Veteran reported that he experienced painful flare-ups of his foot pain approximately 4-5 times per day and he reported that the flare-ups lasted for 3-5 hours at a time. The Veteran specifically reported that his flare-ups had increased in severity since his last VA examination. The Veteran denied use of assistive devices, corrective shoes, and shoe inserts. The Veteran again reported that he avoided activities that aggravated his foot pain, which were usually activities that required a lot of walking. The Veteran reported that he no longer participated in activities such as golf, hunting, and fishing. Upon physical examination of the feet, there was no evidence of joint deformity, deviation, inflammation, or discoloration. There was no callous formation or other signs of abnormal weight bearing. The Veteran's feet were negative for fungal infection. Achilles alignment was within normal limits. There was no pain on manipulation. The Veteran's arches were slightly reduced with and without weight bearing. There was normal range of motion of the feet and there was no increased limitation of motion noted upon repetition. There were no corns or other lesions noted on the feet. The Veteran was able to rise to his toes and to his heels. There was no evidence of edema, weakness, or instability. There was no tenderness noted to palpation of the feet at the heel or along the arches of the feet, bilaterally. X-rays of the left foot revealed minimal degenerative changes at the metatarsophalangeal joint of the great toe; however, no other significant degenerative changes were appreciated. There was no evidence of pes planus of the left foot. X-rays of the right foot revealed minimal degenerative changes at the metatarsophalangeal joint of the great toe; however, no other significant degenerative changes were appreciated. There was no evidence of pes planus of the right foot. The examiner diagnosed mild, bilateral pes planus with hallux valgus and left heel spur and degenerative changes at the metatarsophalangeal joint. There is no indication from the record, and the Veteran has not reported, that he receives treatment at any facility for his bilateral foot disability. The Board finds that the Veteran is not entitled to a compensable disability rating for bilateral pes planus with hallux valgus and left heel spur. In this regard, the Board notes that there is no evidence that the Veteran has moderate pes planus with symptoms such as weight-bearing over or medial to the great toe, inward bearing of the tendo Achilles, or pain on manipulation of the feet. The Board notes that while the Veteran has consistently reported experiencing foot pain and painful flare-ups of such, there is no objective evidence of pain on manipulation of his feet at any of his VA examinations. The Veteran's subjective complaints of pain are sufficiently contemplated by the noncompensable rating criteria, as the criteria accounts for mild symptoms, which would logically include reports of pain. Additionally, the November 2010 VA examiner clearly noted that the Veteran's bilateral foot disability was mild in nature. Also, both Achilles were noted to be aligned at all of the Veteran's VA examinations and there was no evidence of abnormal weight bearing noted at any of the Veteran's VA examinations. Furthermore, the Veteran does not receive treatment for his bilateral foot disability, he manages with simple over-the-counter pain management, and he has consistently denied using any sort of corrective shoe or shoe inserts for treatment. Therefore, the Board finds that a compensable disability rating is simply not warranted at this time. 38 C.F.R. § 4.71a, Diagnostic Code 5276. As the Veteran has been noted to have hallux valgus, consideration has been given to assigning a compensable disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5281, used for evaluation hallux valgus. However, there is no indication from the record that the Veteran has severe hallux valgus in either foot that would be equivalent to the amputation of the great toe. Further, the Veteran has never had surgery on either foot, let alone resection of the metatarsal head. Therefore, a compensable disability rating is not warranted under this code. As the Veteran has been noted to have left heel spur, consideration has also been given to assigning a compensable disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5284, used for evaluation of foot injuries. However, under this code, evidence of a moderate foot disability is required for a compensable disability rating and as noted above, the Veteran's bilateral pes planus with hallux valgus and left heel spur has been specifically found to be mild in nature. Further, the Board acknowledges that the Veteran has been diagnosed with great toe arthritis in both feet. However, as noted above, the Veteran was scheduled for a VA examination to determine whether the great toe arthritis was related to his service-connected bilateral foot disability and he failed to report for that examination. Therefore, a disability rating based on the symptoms of great toe arthritis cannot be assigned at this time. Therefore, a compensable disability rating is not warranted under this code. The Board notes that the pain on use, fatigue, and painful flare-ups reported by the Veteran at his VA examinations were accounted for by the VA examiners in determining the Veteran's functional impairment, to include any additional functional impairment following repeated use due to pain, incoordination, excess fatigability, or lack of endurance. In fact, there is no evidence of record showing the Veteran to have functional impairment in excess of that reported at his various VA examinations and as noted above, the Veteran's subjective complaints are contemplated by the noncompensable rating criteria. Thus, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular compensable disability rating for the Veteran's pes planus with hallux valgus and left heel spur. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. 202. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. Fenderson v. West, 12 Vet. App. 119 (1999), Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record shows that the manifestations of the disability are contemplated by the schedular criteria. There is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. In addition, the evidence does not show frequent hospitalization or marked interference with employment beyond that envisioned by the currently assigned rating. Therefore, the Board has determined that referral of this case for extra-schedular consideration is not in order. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a compensable disability rating for bilateral pes planus with hallux valgus and left heel spur is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a compensable disability rating for bilateral pes planus with hallux valgus and left heel spur is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs