Citation Nr: 1321464 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-15 297 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating higher than 30 percent for bilateral pes planus (flat feet). 2. Entitlement to an effective date earlier than November 1, 2001, for the grant of service connection for the bilateral pes planus, including on the basis of clear and unmistakable error (CUE) in a prior September 1989 rating decision initially considering and denying this claim. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran-Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from July 7, 1982 to July 6, 1985 and from January 5, 1988 to July 14, 1989. He appealed to the Board of Veterans' Appeals (Board/BVA) from decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2013, in support of his claims, he testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the proceeding is of record. FINDINGS OF FACT 1. The Veteran's initial claim of entitlement to service connection for bilateral pes planus was received on July 19, 1989, well within one year of his separation from service just a relatively few short days before that, on July 14, 1989. 2. In an unappealed September 1989 rating decision, the RO initially considered and denied his claim of entitlement to service connection for bilateral pes planus, finding this disability had pre-existed his military service and had not been aggravated during or by his service over and beyond the condition's natural progression. The decision relied on his service treatment records (STRs), May 1989 Medical Board findings, and August 1989 VA examination findings, but did not consider June 1989 Physical Examination Board (PEB) findings, as the PEB report was not associated with the record at that time. 3. In an August 2007 Reconsideration decision, the Board granted the Veteran's claim for service connection for bilateral pes planus on the merits, based primarily on the June 1989 PEB report, which had been added to the record in July 2006. 4. Since the day following his discharge from service, so since July 15, 1989, he is shown to have severe pes planus with pain on manipulation and use accentuated, indication of swelling on use, marked pronation and extreme tenderness of the plantar surfaces of the feet; in comparison, pronounced pes planus, including symptoms of inward displacement and severe spasm of the tendo Achilles on manipulation and characteristic callosities has not been shown. CONCLUSIONS OF LAW 1. The criteria are met for an earlier effective date of July 15, 1989, but no earlier, for the grant of service connection for the bilateral pes planus. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.156(c)(3), 3.400 (2012). 2. The criteria also are met for the 30 percent rating, though no greater rating, for the bilateral pes planus from this earlier effective date of July 15, 1989 (rather than just as of November 1, 2001). 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and any medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that he is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Given the favorable outcome discussed below concerning the Veteran's claim of entitlement to an earlier effective date for the grant of service connection for his bilateral pes planus, an assessment of whether there has been compliance with VA's duty-to-notify-and-assist obligations under the VCAA is unnecessary. Consider also that the Board is additionally granting an earlier effective date for the 30 percent rating he initially received for this disability, retroactive to July 15, 1989, rather than just as of November 1, 2001. He resultantly will receive additional compensation for this disability at the 30-percent rate for those many additional intervening years, although, as also will be explained, the Board does not find that he is entitled to a rating higher than 30 percent either then or at any time since. For initial-rating claims, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the originating claim for service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. at 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). According to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008), and this line of precedent cases and progeny, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating and effective date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved, and this occurred in this particular instance. The Veteran was provided the required SOC, also a supplemental SOC (SSOC), citing the applicable statutes and regulations and discussing the reasons and bases for assigning a 30 percent rating for his bilateral pes planus as of November 1, 2001, and not this or a higher rating as of an earlier effective date. So he has received all required notice concerning this claim. VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including the procurement of potentially relevant records and, in certain cases, by offering a medical examination or obtaining a medical opinion when needed to decide the claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). With regards to this additional duty to assist the Veteran with his claim, the file contains his STRs, post-service VA and private treatment records, the reports of his VA compensation examinations, and his and his representative's written and oral testimony and pleadings, including during the January 2013 videoconference hearing before the Board. He most recently had a VA compensation examination concerning his bilateral pes planus disability in September 2011. There is no indication or allegation this condition has worsened appreciably in the nearly 2 years since, and VA is not obligated to provide another examination simply as a matter of course, that is, just because of the mere passage of time since an otherwise adequate examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Moreover, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume, and need not affirmatively establish, the adequacy of the examination report and the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still entitled to assume the competency of a VA examiner and the adequacy of a VA opinion without demonstrating why the medical examiner's report is competent and sufficiently informed); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. indeed, even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). Accordingly, the Board finds that the September 2011 examination is sufficiently contemporaneous for rating purposes and addresses the applicable rating requirements. There additionally is earlier-dated medical and other evidence in the file permitting assessment of the severity of his disability back to the date of receipt of his initial filing of this claim. See Chotta v. Peake, 22 Vet. App. 80, 86 (2008) (indicating when it is necessary to obtain a "retrospective" medical opinion regarding the severity of a disability years or even decades earlier). During that September 2011 VA examination, the Veteran reported that he was then seeing a private physician (from "Ortho Carolina") for his feet. The record shows the Veteran has submitted records from this provider from as recently as February 2010. He has not submitted a more recent release of information form for Ortho Carolina, allowing VA to obtain more recent confidential records from this facility, nor for that matter has he otherwise asked VA to attempt to obtain more current records from this provider. Given the absence of the provision of a current release of information from or even a request from him for VA to obtain any more current records, coupled with him having earlier submitted records from this provider on his own accord, the Board finds that VA did not have a duty to attempt to obtain any such additional records. 38 C.F.R. § 3.159(c)(1). Regarding his videoconference hearing before the Board, 38 C.F.R. 3.103(c)(2) requires that a VLJ chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be advantageous to the claimant's position. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the Veteran's January 2013 hearing, all parties agreed as to the issues on appeal. The Veteran also affirmatively testified that the medical evidence of record was sufficient to show his entitlement to a higher rating for his service-connected bilateral pes planus. There is no indication he has any additional evidence to submit or that there is any additional evidence for VA to obtain regarding his claims. (Once again, although there is an indication he may have received treatment for pes planus from a private provider, Ortho Carolina, after February 2010, as he already had submitted records from this provider up until that point in relation to his claim for increase, he is already presumed to have notice that the provider constituted a source of pertinent evidence. Additionally, as explained above, VA did not have a duty to attempt to obtain such records). Thus, the Board finds that its duties under Bryant have been met. Further, to the extent there were any shortcomings, the Veteran was not prejudiced as there is no indication there is any further outstanding evidence (aside from the potential evidence from Ortho Carolina discussed above) pertinent to his claim. The Board has found nothing in the file suggesting there is any outstanding available evidence for VA to obtain in respect to his claims. No further action therefore is required to comply with the duties to notify and assist him in developing the facts pertinent to his claims. II. Analysis Earlier Effective Date In a December 2007 rating decision, the RO, pursuant to an earlier August 2007 Board decision, granted service connection for bilateral pes planus. The RO initially assigned an effective date of July 7, 2003 for this grant of service connection for this disability, but in a later January 2009 decision the RO assigned an earlier effective date of November 1, 2001. In a subsequent April 2008 statement, the Veteran specifically requested an even earlier effective date back to June 1989, coinciding with the conclusion of his military service and initial filing of his claim for this same disability. Also, in a later October 2009 statement, he challenged the assignment of the earlier, November 1, 2001, effective date essentially on a theory of CUE in a prior September 1989 rating decision initially considering and denying this claim. As he generally challenged the initial assignment of the July 7, 2003 effective date for service connection for bilateral pes planus by the December 2007 rating decision within one year of that decision and also subsequently challenged the assignment of the November 1, 2001, effective date by the January 2009 decision within one year of that decision, his current claim seeking an even earlier effective date is not freestanding in nature and may be considered on its merits rather than summarily dismissed or denied. See e.g. Rudd v. Nicholson, 20 Vet. App. 296 (2006). See also 38 C.F.R. § 20.201; Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute a Notice of Disagreement (NOD) under the law), rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming the claimant desired appellate review, meeting the requirement of § 20.201 was not an onerous task). The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that "no procedural requirement in the adjudication of Veterans benefits is less burdensome than the NOD ... finding that a statement constitutes an NOD merely requires finding terms that can be reasonably construed as a desire for appellate review." See Ortiz v. Shinseki, 23 Vet. App. 353, 358 (2010) (rev'd on other grounds by sub nom. Rivera v. Shinseki, 654 F.3d 1377 (Fed. Cir. 2011)). Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. If a claim for service connection is received within one year after separation from service, the effective date is the day following separation from service or the date that entitlement arose. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). The effective date for an award of service connection based on a claim reopened due to the submission of new and material evidence not received within one year of the prior decision is the date of receipt of the new claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q), (r). Where a service-connection claim has been finally decided, before addressing that claim anew, VA must first determine whether new and material evidence has been submitted to reopen that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. If new and material evidence is presented or secured with respect to a prior final and binding decision, the Secretary shall reopen and review the former disposition of that claim. 38 U.S.C.A. § 5108. If, however, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant, official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider, rather than reopen, the claim. 38 C.F.R. § 3.156(c)(1). Such official service department records include, but are not limited to, records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name. 38 C.F.R. § 3.156(c)(1). Such records do not include any records that VA could not have obtained when it decided the claim because the records did not exist, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or from any other official source. 38 C.F.R. § 3.156(c)(2). An award made based all or in part on such newly received service department records is effective on the date entitlement arose or the date VA received the previously denied claim, whichever is later, or such other date as may be authorized by the provisions applicable to the previously denied claim contained in Part 3 of the VA regulations. 38 C.F.R. § 3.156(c)(3). In this case, the Veteran's initial claim for service connection for bilateral pes planus was received on July 19, 1989, just after he had separated from service on July 14, 1989 (i.e., so less than a week later). In a September 1989 rating decision, the RO denied the claim. In so doing, the RO found that he had a moderate degree of pes planus and that he had complained of pain on prolonged standing even at the time that he entered service and that a VA examination since performed in August 1989 had shown similar findings in that he complained that his feet were symptomatic after prolonged standing or on physical exertion. Thus, the RO concluded there was no permanent aggravation of the pes planus during his service over and beyond the natural course of the condition. 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. §§ 3.304, 3.306. The RO specifically considered his STRs, a May 1989 Medical Evaluation Board (MEB) report, and the August 1989 VA examination report. A June 1989 Physical Evaluation Board (PEB) report was not associated with the claims file at that time, however, and thus was not considered. The Veteran did not appeal that September 1989 decision. In a subsequent December 2002 rating decision, the RO declined to reopen his claim for service connection for bilateral pes planus, finding that new and material evidence had not been submitted. Although notified of that decision in January 2003, he again did not initiate an appeal. In January and May 2004 decisions, the RO again found that new and material evidence to reopen the claim had not been received. But he subsequently perfected an appeal of the May 2004 decision and, in July 2006, a copy of the PEB report was received. The report shows that the PEB found that he had severe symptomatic pes planus, which had been aggravated by his service. The report advised him that, since he had a service-connected medical condition, he should contact a VA counselor upon discharge to learn about available benefits such as disability compensation. In October 2006, the Board denied "reopening" of his claim, also finding that new and material evidence had not been received. He filed a motion in response in December 2006 requesting reconsideration of that decision, and the Board granted his motion in March 2007. Later, in an August 2007 reconsideration decision, the Board found that, given the then recent receipt of the PEB report, reconsideration of the claim on the merits (rather than reconsideration of whether new and material evidence had been received) was appropriate under 38 C.F.R. § 3.156(c). The Board then proceeded to grant service connection for bilateral pes planus, based in large part on the PEB finding that the Veteran's flat feet were aggravated by his service beyond the condition's natural progression. As explained in the Board's August 2007 decision, under 38 C.F.R. § 3.156(c), the September 1989 rating decision cannot be regarded as a final and binding determination. Nor can the subsequent decisions denying the petitions to reopen this claim, even though also not appealed. See, e.g., Vigil v. Peake, 22 Vet. App. 63 (2008) (Pursuant to 38 C.F.R. § 3.156(c) (as in effect in 2005), VA is required to consider the assignment of an effective date earlier than the date of receipt of a claim to reopen when JSRRC records are obtained after an initial denial of a claim for service connection but later considered by VA and used to support the subsequent award of service connection). Vigil also held that unit records provided to the RO by the JSRRC (formerly the U. S. Armed Services Center for Research of Unit Records (USASCRUR)) constitute official service department records for purposes of new and material evidence, thus requiring de novo review or reconsideration rather than review as a claim to reopen. So ultimately, instead, that decision constitutes a reconsideration of the Veteran's original claim of entitlement to service connection for bilateral pes planus, received on July 19, 1989. Consequently, the effective date for the award of service connection for this disability is the date that entitlement arose or the date that his initial claim was received, whichever is later, or, such other date as may be authorized by the controlling regulations contained in Part 3. 38 C.F.R. § 3.156(c)(3). Consequently, because entitlement to service connection for bilateral pes planus clearly had arisen the day after he separated from service (i.e., July 15, 1989) and because his claim was received a short time later on July 19, 1989, well within a year of his separation from service, the appropriate effective date for the award of service connection is July 15, 1989. See 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.156 (c), 3.400(b)(2). Because the Board is awarding an earlier effective date back to July 15, 1989, based on the provisions of 38 C.F.R. § 3.156(c), it need not consider whether there was CUE in the September 1989 rating decision earlier considering and denying this claim. Even if such error were found to exist, it would not form the basis for awarding an effective date prior to July 15, 1989, inasmuch as this represents the first day following the Veteran's separation from service when he returned to life as a civilian. It is only at the point that VA begins compensating him for disability arising out of or stemming from his service (i.e., for service-connected disability). Prior to then, this responsibility instead is vested with his military service department that instead falls under the Department of Defense (DoD). Increased Rating As already alluded to, service connection for bilateral pes planus was granted by the Board in August 2007 and implemented in a December 2007 RO rating decision. A 10 percent rating initially was assigned retroactively effective from July 7, 2003. But in a March 2009 decision the rating was increased to 30 percent as of November 1, 2001, so as of an earlier effective date. The Veteran since has continued to request an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed a Veteran is seeking the highest possible rating for a disability, absent express indication to the contrary). Since, however, the Board has granted an earlier effective date of July 15, 1989 in this decision, this requires considering what rating was warranted for his bilateral pes planus also as of that earlier date, so not just whether a rating higher than 30 percent has been warranted since November 1, 2001. Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). As the claim for increase is an appeal from the initial rating assigned, the possibility of a "staged" rating should be considered - meaning assignment of different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). This would compensate the Veteran for this variance. Here, however, the Board finds that a staged rating is not warranted as the degree of impairment due to the bilateral pes planus has not varied or fluctuated significantly since his service. But there is competent and credible indication he is entitled to the higher 30 percent rating, albeit no greater rating, as of July 15, 1989, so as of the day following his discharge from service. He resultantly will receive additional compensation at this 30-percent level for the many intervening years between July 15, 1989 and November 1, 2001, the existing effective date for this rating. So, in this respect, his claim is being granted rather than entirely denied. Where there is a question as to which of two evaluations apply, 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the Veteran prevailing in either event, or whether instead a fair preponderance of the evidence is against the claim, in which case the claim is denied. 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's service-connected pes planus is rated under Diagnostic Code 5276. Under this Code, severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities warrants a 20 percent rating if unilateral, and a 30 percent rating if bilateral. Pronounced pes planus, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances warrants a 30 percent rating if unilateral, and a 50 percent rating if bilateral. 38 C.F.R. § 4.71a. An October 2001 private progress note shows he was suffering from pain, swelling and numbness in his toes. He reported increased pain on standing on both sides. The diagnosis was equinus and flat feet and severe pronation. An August 2002 private progress note shows that the Veteran was complaining that the more he was on his feet the more foot pain he had and that he did not experience the problem when he was off of his feet. The examining podiatrist noted that the Veteran did wear a good pair of support shoes but that these were apparently not helping him. Physical examination showed bilateral ankle equinus and obvious flatfoot deformity to both feet. There was some stiffness to the subtalar joints, although muscle strength was normal and intact bilaterally. The Veteran walked in a valgus position in both heels and had pain around the subtalar joint, as well as in his plant heels. X-rays showed significant pes planus deformity with resultant midfoot breakdown. The diagnostic impression was bilateral flatfeet with plantar fasciitis and osteoarthritis. The Veteran was prescribed some pain medicine along with orthotics. At a September 2003 VA examination, the Veteran reported pain in the bilateral feet and that he had been told that special shoes and inserts would not help alleviate the pain. He did wear light sole shoes and took over the counter medications for pain. He indicated that his right foot bothered him when driving a city bus because of having to brake frequently, but otherwise it did not severely interfere with his daily activities. The Veteran did not describe any specific flare-ups of the foot condition. Physical examination showed a severe degree of bilateral pes planus with pronation of the heel, causing the Veteran to walk with the feet at a 30 degree external positioning but there was no shoe wear of an abnormal nature and no associated skin abnormalities. There was about a 30 degree malalignment of the Achilles tendon on weight bearing that was passively correctable. There were no callosities or breakdown indicative of abnormal weight bearing. The pertinent diagnosis was bilateral congenital flat feet with heel pronation and history of osteoarthritis. The examiner commented that the Veteran did have significantly severe bilateral pes planus, which caused eversion of the feet in walking. Private treatment records dated in January 2005 show findings of very flat feet and complaints of severe bilateral foot pain. The Veteran reported his feet would swell with activity and when the swelling was really bad his feet would go numb. Physical examination showed that the Veteran was unable to perform a single heel rise of the right heel and that the left heel remained everted with single heel rise. There was pain along the course of the posterior tibial tendon from the navicular to the medial malleolus bilaterally and the heels remained everted. There was about a 4 degree inversion and a 20 degree eversion and the calcaneus did not reach a neutral position. In stance, there was about an 8 degree calcaneus eversion. There was palpable dorsal extension at the midfoot bilaterally. A gait analysis showed that the heel remained everted through the entire gait cycle and there was no inversion of motion at all. An X-ray showed moderate degenerative changes at the talonavicular joints and the navicular cuneiform joints bilaterally along with severe flat feet. The pertinent diagnostic impressions were osteoarthritis of the talonavicular and navicular cuneiform joints, post tibial tendon dysfunction bilaterally and severe pes planus. In a June 2006 letter, a private podiatrist indicated that his examination showed that the Veteran had moderate to severe flatfeet. Based on his X-rays, the examiner believed that this had been longstanding. The podiatrist noted that military service probably aggravated the Veteran's existing condition, which had in turn led to some arthritic changes in the feet. A June 2007 private podiatrist's note shows that the Veteran was complaining of aching, throbbing pain involving the arches of both feet that was worse with walking. The Veteran was seen with a cane. Physical examination showed a rigid bilateral flatfoot deformity with the Veteran seeming to have pain involving the hindfoot as a result. He also had minimal flexibility to his ankle and had ankle equinus. X-rays confirmed a pronated subtalar joint with some joint space narrowing. The diagnostic impression was longstanding pes planus deformity with osteoarthritis. It was noted that orthotics had not helped the Veteran nor had anti-inflammatories. The podiatrist noted that the Veteran might be better off having surgery on his feet, possibly a triple arthrodesis. During a February 2008 private evaluation of the right knee, it was noted that the Veteran had severe bilateral pes planus. In his April 2008 NOD, the Veteran remarked that he had been awarded Family and Medical Leave from his job signifying that he could take off up to three days per week because of his feet. He also had had special shoes made for his feet. He felt that he should receive at least a 40 percent rating for his bilateral foot disability. A May 2008 private examination of the right knee includes a finding of significant pes planus with standing to both feet. The pertinent diagnostic impression was severe bilateral pes planus. In a May 2008 statement, the Veteran indicated that he felt that the August 2002 orthopedic specialist's findings indicated the presence of severe or even profound pes planus. He noted that orthopedic examination had shown that the pes planus was rigid and severe and that the support shoes the Veteran was wearing were not helping him. He also indicated that a private physician had "written him out of work" for 90 days within the past year. At a December 2008 VA low back examination, it was noted that the Veteran walked with a cane because of his feet. At a February 2009 VA examination, the Veteran reported bilateral foot pain on the bottoms of both feet and also over the tops of the metatarsals. He indicated that he was seeing a private podiatrist and had last seen him six months previously. He noted that orthotic inserts did not help his pain. He reported that he worked as a city bus driver and had missed 100 days (non-physician directed) of work in the last 12 months due to the bilateral foot pain. The Veteran reported pain while walking. He indicated that he was able to stand for 15 to 30 minutes but was unable to walk more than a few yards. It was noted that the Veteran did not need an assistive device and that he did not experience flare-ups of foot joint disease. Physical examination showed no evidence of painful motion, swelling, instability, weakness or abnormal weight bearing of either foot. There was tenderness to the plantar area of both feet on palpation. Achilles alignment and midfoot alignment were normal. There was moderate pronation and there was mild valgus angulation of the os calcis in relationship to the long axis of the tibia/fibula. Left foot examination showed left heel valgus to 8 degrees that was correctable by manipulation. Location of the weight bearing line was medial to the great toe. Right foot examination showed right heel valgus to 10 degrees, which was correctible by manipulation. The weight bearing line was medial to the great toe. The Veteran's gait was guarded and slow. X-rays of the feet showed pes planus, hammertoes and calcaneal spurs. The examiner diagnosed the Veteran with bilateral pes planus and found that the disability had significant occupational effects. The examiner found that the disability prevented sports, had a severe effect on chores and exercise, had a moderate effect on recreation, had a mild effect on driving, shopping and traveling and had no effect on feeding, bathing, dressing, toileting or grooming. The examiner noted that the Veteran's bilateral calcaneal spurs were often an incidental finding unrelated to foot pain (clinical speculation) and would have no significant effect on the Veteran's occupational functioning and no effect on his daily activities. The examiner also indicated that the hammertoes were not on the site of pain, were not seen on an actual review of the X-ray in question and were not appreciated on examination. Thus, they were found not to have any significant effects on occupational functioning and no effect on daily activities. The examiner noted that the Veteran had been employed full time as a bus driver for the last 5 to 10 years although he had reported that he had lost 14 weeks of work in the last 12 month period due to bilateral foot pain. The examiner commented that the Veteran should limit walking to 25 yards and that sedentary work was acceptable. In his August 2009 Substantive Appeal (on VA Form 9), the Veteran indicated that he disagreed with the decision concerning his feet. He believed the condition was chronic and that he should receive a 50% rating. During a September 2009 VA hips, knees and ankles examination, he reported that he had been out of work for about 50 days in the past year because of pain. He indicated that the previous year he had lost about 100 days. Physical examination did not show any camel sign or abnormal shoe wear. It was noted that he did have bilateral pes planus. A February 2010 private orthopedic examination shows that the Veteran reported difficulty localizing his lower extremity pain. He indicated that it occurred around the ankles, hindfoot and midfeet, as well as the metatarsals. It was worse with walking and it was relieved with rest. He had tried different types of orthotics and shoe inserts without improvement. His pain tended to be worse on the right foot. Physical examination showed that the Veteran walked with a mild limp on the right. There was severe pes planus bilaterally with moderate hallux valgus deformities. There was no swelling and deformities were symmetric. He was able to do a single leg heel rise on each side. Both feet were tender at the insertion of the Achilles, plantar fascia, around the ankle joints and through the midfeet. It was difficult to localize the maximal area of tenderness. The Veteran had reasonable flexibility to the hindfoot. Tight heel cords were noted. Sensory examination was normal and there were strong pedal pulses. X-rays showed fairly substantial pes planus. Talar breaking was noted, particularly on the right foot. The Veteran had plantar and posterior heel spurs. Early degenerative arthritis was noted through the midfeet. The diagnosis was obesity with pes planus and chronic bilateral foot and ankle pain. In a July 2010 statement, the Veteran indicated that he was seeking separate ratings for arthritis of the bilateral feet. At a September 2010 VA examination of the bilateral hips, the Veteran reported that he could stand for only 5 minutes at a time and walk only 1/8 of a mile. He indicated that he used a cane intermittently and that he also frequently used orthotic inserts. Physical examination showed a very slow gait with the Veteran using a cane. The Veteran reported that he had missed 40 days from work in the past 12 month period and that back pain/muscle spasm caused him to miss all 40 of these days. During a May 2011 VA low back and knee examination, the Veteran reported that he could walk unaided about 100 yards and that he used a cane when his back was hurting badly. The Veteran was noted to have an antalgic gait. He reported that he could walk 100 yards and stand for 5 minutes. During a September 2011 VA examination, the Veteran reported that he had constant pain in both feet in the arch area and in the metatarsal area that was accentuated on use. There was no pain on manipulation of the feet and no swelling on use. There were no characteristic calluses. The Veteran's symptoms were not relieved by arch supports. There was extreme tenderness on the plantar surfaces of both feet that was not improved by orthotics. It was noted that the Veteran was seeing a private physician for the foot problems. The Veteran had decreased longitudinal arch on weight bearing and there was objective evidence of marked deformity of the foot. There was also marked pronation of the feet. The weight bearing line fell over to medial to the great toe. There was no lower extremity deformity causing alteration of the weight bearing line other than pes planus. The Veteran did have inward bowing of the Achilles tendon (i.e. hind foot valgus, with lateral deviation of the heel). The Veteran did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation. The Veteran was using a cane for occasional locomotion and he also constantly used over the counter arch supports. The Veteran indicated that he used the cane on "bad" foot days for ambulation. September 2011 X-rays did show pes planus, hammertoes and calcaneal spurs but did not show arthritis. The examiner noted that the Veteran was currently employed driving city buses for Charlotte as a full time relief driver. He indicated that he did not usually stand during work. There was one particular bus that he could not operate because he had to hold the brake for a long time. This was not his usual vehicle. During his January 2013 videoconference hearing before the Board, the Veteran testified that his flat feet adversely affected his ankle and that occasionally his feet would swell although this had not happened in a number of years. He indicated that he wore orthopedic shoes to help with the problem. He also reported that he had pronounced marked pronation of the feet. He indicated that his bilateral pes planus was severe. He experienced pain when walking and with prolonged standing and he was limited in the distance that he could walk. The orthopedic shoes and the insoles he wore did not help with the problem. Additionally, the Veteran indicated that he had arthritis in his feet and that this was really painful. He reported that he was still working as a city bus driver and that his foot condition usually did not bother him on the job except if he had to do a lot of braking. Then, he would experience pretty significant foot pain. The Veteran's representative noted that the foot condition also affected the Veteran's ability to participate in recreational activities with his children and his ability to do chores around the house. The evidence on the whole shows the Veteran experiences a severe versus pronounced degree of pes planus. In this regard, his bilateral foot disability is shown to be manifested by marked deformity, including pronation, pain that is accentuated on use and reported past swelling on use. Also, during the most recent September 2011 VA examination he was found to have extreme tenderness to the plantar surfaces. Although he has not demonstrated characteristic callosities and although his feet have not been consistently found to be painful on manipulation, given that he has been consistently diagnosed with a severe level of pes planus, the Board finds there is a reasonable basis for continued assignment of the existing 30 percent rating. Moreover, it is apparent from the records in the file that his disability is as severe now as it was as of November 1, 2001, but also as it was even a number of years prior to that, namely, as of July 15, 1989, so dating back to the conclusion of his service when he returned to life as a civilian. He therefore must be compensated for this disability at this level of 30 percent from the effective date of his award, meaning at this level since July 15, 1989, rather than just at this level as of November 1, 2001. That said, the Board does not find a basis for assigning a higher 50 percent rating for his bilateral pes planus at any time since July 15, 1989. Notably, the most recent September 2011 VA examination did show marked pronation of the feet and extreme tenderness to the plantar surfaces, although conceding his overall pes planus symptomatology was not improved by orthopedic shoes or appliances. Still, there are no findings of record of marked inward displacement and severe spasm of the tendo achillis on manipulation. To the contrary, the September 2011 VA examiner affirmatively found that such displacement and spasm was not present. Also, although the September 2003 VA examiner found a 30-degree malalignment of the Achilles tendon on weight bearing, he surmised this problem was passively correctable and did not note any spasm or inward displacement on manipulation. Additionally, the report of the January 2005 private physical examination generally showed that the heels remained everted rather than inverted and also did not note any spasm or inward displacement on manipulation. Further, although the February 2009 VA examiner found some degree of left and right foot valgus, these problems were also found to be correctable by manipulation and the examiner did not note any spasm or inward displacement on manipulation. Moreover, the Veteran has not specifically alleged any such severe spasm or marked inward displacement. The Board is cognizant that it is not necessary for all of the criteria listed as representative of the impairment necessary to support assignment of a higher 50 percent rating to be present in order for such a rating to be assigned, if the Veteran's overall impairment is shown to be compatible with such a rating. In the psychiatric context, as evidenced by use of the phrase "such symptoms as," followed by a list of examples, the list of symptoms in the rating criteria is meant to be mere examples of symptoms that would warrant a particular evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). The Federal Circuit Court has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The Veterans Court (CAVC) and Federal Circuit Court also seemingly have accepted this expansive consideration even in appeals that do not involve mental health related disabilities. But given that some of the criteria representative of this impairment has not been present (i.e. marked inward displacement and severe spasm of the tendo achillis); given that characteristic callosities, generally representative of assignment of a lower 30 percent rating also have not been present; given that the Veteran's pes planus generally has been characterized as "severe" in keeping with assignment of the existing 30 percent rating; and given that he has been able to continue to working as a full-time relief bus driver throughout the rating period despite his pes planus disability, the Board finds that the level of pes planus disability is most compatible with assignment of the existing 30 percent rating. 38 C.F.R. § 4.7. The Board also has considered whether a higher rating could be warranted under any other rating codes used to evaluate disability of the foot. In this regard, although the Veteran has been noted to have hammertoes and hallux valgus, neither of these conditions are service connected and neither condition is shown to be a manifestation of his service-connected pes planus. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (requiring association of these conditions with the service-connected disability by resolving all reasonable doubt in the Veteran's favor under 38 C.F.R. §§ 3.102 and 4.3 only if the Board is unable to distinguish or differentiate by competent medical evidence or opinion the extent of disability that is due to service-related causes (i.e., service-connected disability) from that which is not). Accordingly, ratings under Codes 5280 and 5282 are not warranted. 38 C.F.R. § 4.71a. Also, as weak foot, claw foot, metatarsalgia anterior, hallux rigidis and malunion of the tarsal or metatarsal bones are not shown, ratings under Codes 5277, 5278, 5279, 5281 and 5283 are not warranted. Id. Moreover, although the Veteran could conceivably be provided an alternative rating under Code 5284 for "foot injuries, other", considering the feet as a whole, the Board does not find that his pes planus amounts to more than moderate injury of each foot. While the disability certainly limits his ability to walk, he has continued to be able to work full time and to independently take care of his basic activities of daily living (e.g., the February 2009 VA examiner found that the disability had only a mild effect on driving, shopping and traveling and no effect on feeding, bathing, dressing and grooming). Accordingly, there is no basis for assignment of a higher rating for the disability under this alternative rating code. Id. As the Veteran has been found to have osteoarthritis of the feet (at least during some examinations) and as the June 2006 private podiatrist specifically related the osteoarthritis to the service-connected pes planus, the Board has considered whether a separate rating could be assigned for osteoarthritis of the feet with pain under Code 5003. 38 C.F.R. § 4.71a. However, as pain on manipulation and use of the feet is already specifically accounted for by the existing rating under Code 5276, assigning a separate rating based on such pain would amount to impermissible pyramiding. 38 C.F.R. § 4.14. Similarly, although the Veteran has also been found to have plantar fasciitis that may be related to his pes planus, the symptomatotology from this condition (i.e. pain in the plantar fascia of each foot) is also specifically accounted for by the existing rating and assigning a separate rating based on such pain would amount to impermissible pyramiding. Id. The Board also notes that some of the bilateral foot examinations of record have also found pathology in the bilateral ankle/tibial area. However, service connection for bilateral ankle disability was separately denied by a December 2009 rating decision, which the Veteran did not appeal. Accordingly, assessment of any current bilateral ankle/tibial disability is not currently on appeal before the Board and the rating codes applicable to ankle/tibial disability need not be considered. (The Veteran is also service connected for bilateral knee disability and the ratings assigned for this disability also are not on appeal, so to the extent he has any tibial impairment that would fall under consideration of rating codes pertaining to the knee, such codes also need not be considered in this decision). Additional factors that could provide a basis for an increase also have been considered; however, the evidence does not show he has functional loss over and beyond that currently compensated. 38 C.F.R. §§4.40, 4.45, Deluca v. Brown 8 Vet. App. 202 (1995). In this regard, the September 2003 VA examiner specifically indicated the Veteran did not describe any specific flare-ups. Also, although he clearly has reported swelling on use at times earlier in the rating period, this symptom is specifically contemplated by the underlying criteria for the assignment of a 30 percent rating. Moreover, in his January 2013 hearing testimony, he acknowledged having had occasional swelling of his feet, but he added that it had not occurred "in some years", meaning in quite awhile, even accepting that his orthotic shoes (inserts) in his estimation do not help much. During his February 2009 VA examination, he indicated that he had missed about 100 days of work over the past 12 months on account of his bilateral foot pain. And he reiterated during his January 2013 hearing that his pain is particularly problematic with walking, especially prolonged walking. But the February 2009 VA examiner specifically noted that this missed time was "non-physician directed." Also, during a subsequent September 2010 VA examination (only 11/2 years later), the Veteran reported that he had missed 40 days from work in the past 12 months, all because of back pain with associated muscle spasm. Additionally, during the January 2012 Board hearing, he testified that he was still working as a city bus driver and that his foot condition usually did not bother him on the job except that he had to do a lot of braking. He has generally reported either stable or increasing severity of his pes planus over the years and going from missing 100 days of work due to foot problems from 2008 to 2009 to missing 0 days of work due to foot problems (i.e. 40 days solely due to low back problems with spasm) from 2009 to 2010 is patently inconsistent with such a pattern. Also, the February 2009 VA examiner's finding that the 100 days missed time was non-physician directed tends to suggest the examiner did not find the Veteran's foot disability sufficiently limiting to require him to miss so much time from work. Additionally, the Veteran's testimony that his foot disability generally did not bother him while working also tends to suggest a lower level of disability severity that would not involve having to miss significantly time from work solely due to foot pain. Accordingly, considering all of these pieces of evidence together, to the extent that the Veteran was alleging during the February 2009 VA examination that his foot disability was so severe, in and of itself, that he had to miss 100 days of work within a 12 month period between 2008 and 2009, the Board does not find this allegation sufficient reason to assign a higher rating. The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 direct VA to assign the minimum compensable rating for a joint where the joint is actually painful, unstable, or misaligned. This directive to assign a minimally compensable rating in the presence of pain applies to joint pain generally and is not limited to pain only associated with arthritis. See Burton v. Shinseki, 25 Vet. App. 1, 1-2 (2011). The Veteran already has a compensable rating, however, which exceeds the minimum compensable rating. Moreover, when evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011). Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. Id., at 37. In other words, pain may cause a functional loss, but pain, by itself, does not constitute a functional loss. Id., at 36. Instead, the Board credits his later reports, tending to indicate that although he experiences a lot of pain, particularly on use, his foot disability does not prevent him from functioning adequately as a full-time relief bus driver, having only to avoid driving one particular type of bus. These reports of functional loss are compatible with the existing 30 percent rating assigned inasmuch as even this lesser rating, as opposed to the higher 50 percent rating, accepts that he will experience chronic or recurring pain in his feet on account of his bilateral pes planus. The Board also has considered whether the Veteran's claim for increase for bilateral pes planus should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted during the time frame at issue, that being since July 15, 1989. As explained above, his symptoms, including pain, swelling on use and pronation, are fully contemplated by the pertinent diagnostic criteria. There is nothing in the record suggesting his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards. See, e.g., Thun v. Peake, 22 Vet. App. 111 (2008). As the evidence does not provide a basis for assigning an increased rating for the pes planus on either a schedular or extra-schedular basis, his claim for a higher rating must be denied - again, however, realizing the Board is assigning a much earlier effective date of July 15, 1989 for his 30 percent rating, rather than just as of November 1, 2001. Gilbert, 1 Vet. App. 49, 55 (1990). The net result is that he will receive additional compensation at the 30 percent rate for all times in between. ORDER An earlier effective date of July 15, 1989, is granted for the award of service connection for bilateral pes planus. This rating also is made retroactively effective from this earlier date of July 15, 1989, rather than just as of November 1, 2001, subject to the statutes and regulations governing the payment of VA compensation. A rating higher than 30 percent, however, is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs