Citation Nr: 1323949	
Decision Date: 07/26/13    Archive Date: 08/06/13

DOCKET NO.  06-30 035	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for a low back disability, to include as secondary to service-connected pes planus.

2.  Entitlement to service connection for a left leg and hip disability, to include as secondary to service-connected pes planus.

3.  Entitlement to an increased rating for bilateral pes planus, currently evaluated as 10 percent disabling.

4.  Entitlement to a total rating based on unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Eric A. Gang, Attorney at Law


ATTORNEY FOR THE BOARD

J. Barone, Counsel


INTRODUCTION

The Veteran had active service from October 1965 to September 1967.

This matter came before the Board of  Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The instant issues were remanded for additional development in October 2010.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the claims folder and documents in the electronic file reveals that the relevant records were considered by the RO in readjudicating the claims.

The Board notes that entitlement to service connection for cardiomyopathy with congestive heart failure was denied in a January 2010 rating decision.  In March 2012 the Veteran's representative raised a claim of entitlement to service connection for atherosclerotic heart disease.  This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO.



FINDINGS OF FACT

1.  A low back disability was not manifest in service and arthritis of the spine was not manifest within one year of discharge, and is unrelated to service.  

2.  A low back disability is not due to or aggravated by the service-connected pes planus.  

3.  A left hip and leg disability was not manifest in service and is unrelated to service.

4.  A left hip and leg disability is not due to or aggravated by the service-connected pes planus.

5.  Pes planus is manifested by moderate symptoms including pain on use, weight bearing line over or medial to the great toe, and pain on manipulation.


CONCLUSIONS OF LAW

1.  A low back disability was not incurred in service, and may not be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

2.  A low back disability is not secondary to a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2012).

3.  A left hip and leg disability was not incurred in service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).

4.  A left hip and leg disability is not secondary to a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2012).

5.  The criteria for an evaluation in excess of 10 percent for bilateral pes planus have not been met.  38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1 , 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

On March 3, 2006, the U. S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Id. at 486.  

A letter dated in March 2005 discussed the evidence necessary to support a claim for increase while a letter dated in April 2005 discussed the evidence necessary to support claims for service connection on a direct basis.  Both of these letters invited the Veteran to submit or identify evidence and explained the allocation of responsibilities between the Veteran and VA.  In June 2005 the Veteran was advised of the evidence necessary to support claims for service connection on a secondary basis.  A March 2006 letter informed the Veteran how ratings and effective dates are assigned pursuant to Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2007).

The Board finds that the content of the above notices fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  

With respect VA's duty to assist, the Board notes that identified treatment records have been associated with the claims file.  The Veteran was afforded VA examinations.  The Board finds that the examinations in the aggregate were adequate in that the examining physicians reviewed the record, interviewed the Veteran, and performed appropriate examinations prior to providing their conclusions.  The examination reports of record are thorough and consistent with contemporaneous treatment records, and adequately respond to the questions posed in this appeal.  VA attempted to obtain Social Security Administration disability records pertaining to the Veteran but was informed the records were destroyed.  The Veteran was informed of this by way of a January 2013 letter pursuant to 38 C.F.R. § 3.159(e) (2012).  The Veteran has not otherwise identified any additional evidence or information which is not of record and could be obtained to substantiate the claims.  The Board is also unaware of any such outstanding evidence or information.  Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations.  

For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal.

Analysis

Service Connection

As an initial matter, the Board observes that the Veteran had service in Vietnam from October 1966 to September 1967.  There is no indication that he served in combat.  In that regard, service personnel records indicate that he was a supply clerk with the 139th Supply Company, and do not establish that he received any award indicative of participation in combat.  Even if the Board accepts for the purpose of this decision that the Veteran engaged in combat, there is still a requirement for evidence showing a relationship between the in-service injury and a current disability.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007).  

Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303.  

To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).   
Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service incurrence or aggravation of arthritis may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran's discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  

Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2012).  This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury.  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury.  Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

The Board notes that there was an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744 - 47 (Sept. 7, 2006).  The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged.  Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice- connected disability before an award of service connection based on aggravation may be made.  This had not been VA's practice, which suggests the possibility that the recent change amounts to a substantive change in the regulation. For this reason, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which is more favorable to the claimant.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  

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) (West 2002).

Service treatment records are negative for any diagnosis, complaint, or abnormal finding pertaining to the Veteran's low back or left lower extremity.  On separation examination in September 1967, the Veteran's spine and lower extremities were normal.  He denied recurrent back pain.

VA treatment records reflect treatment for low back pain and pain in the left leg and hip.  Degenerative joint disease of the low back and hip and thigh problems are noted in a March 2005 primary care clinic note.  A June 2004 record notes the Veteran's history of femur rodding in 1966, with a second surgery in 1990.  The Veteran underwent physical therapy in May 2005 for low back pain.  In June 2005 the Veteran was noted to have a new left shoe lift that increased his left hip and leg pain.  

In August 2005 the Veteran reported that he had a fractured femur and herniated disc related to his combat service.

The report of a VA foot examination carried out in October 2005 includes the Veteran's report that he sustained a fractured femur in 1990.

On VA examination in October 2005, the Veteran's history was reviewed.  He indicated his belief that his left leg condition was caused by his pes planus.  He stated that his left leg was injured during service when he was hit by a rocket propelled grenade.  The examiner noted that such was not substantiated by the service treatment records or claims file.  She further noted that the Veteran made no report of injury on VA examination in 1972.  The Veteran reported that his back pain began in 1970 and had worsened over time.  He reported that he quit working seven years previously because of his back disability.  Following physical examination, the diagnosis was degenerative joint and disc disease of the lumbar spine.  The examiner indicated that the lumbar spine disability was not secondary to the pes planus or the left leg disability.  She noted that pes planus had not caused gait impairment and did not cause arthritis.  She stated that the Veteran's gait impairment was secondary to his left lower extremity residuals of fracture and had nothing to do with his pes planus.

A VA treatment record dated in August 2009 indicates that the Veteran had a history of left femur fracture in a motor vehicle accident more than 20 years previously.  The record notes that the Veteran was seen for chronic abscesses of the left thigh starting in November 2008, and that he underwent subsequent hardware removal.  

An April 2010 VA treatment record indicates that the Veteran had undergone removal of plate hardware from the left proximal femur in August 2009.  A remote fracture in 1989 was noted.  

On VA spine examination in November 2010, the Veteran reported that he started having difficulty with low back pain when he was diagnosed with prostate cancer.  Following physical examination, the diagnoses were sacroiliitis condensa and lumbar spine osteoarthritis.  The examiner concluded that the diagnoses were not caused by or a result of service.  She reasoned that the service treatment records did not reveal any evidence of low back problems.  She pointed out that the claimed left leg disorder was secondary to an assault that occurred following service, as related by the Veteran.  She indicated that pes planus did not cause lumbar spine arthritis and that the Veteran's gait impairment was secondary to his left leg fracture and multiple surgeries. 

An additional VA examination was carried out in May 2012.  The Veteran described the gradual onset of lumbar pain starting five years previously.  He correlated aggravation to his diagnosis with prostate cancer.  He denied history of fracture.  With respect to his left lower extremity, he reported that he sustained a left femur fracture in the 1980s.  The examiner noted that treatment included internal fixation and removal of hardware.  The diagnoses were lumbar compression fracture and disc disease and residual fibrosis of the left hip/thigh.  The examiner opined that the conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  He reasoned that the service records did not document treatment for the lumbar spine or left hip.  He pointed out that the Veteran reported onset years after active duty and attributed the causative factors to non-active duty events.  He also opined that the claimed conditions were less likely than not proximately due to or the result of the Veteran's service-connected condition.  He reasoned that that residual ankle and foot strength, range of motion, stability, and alignment were too functional to cause or aggravate a secondary degenerative process in the low back or left hip.

Having carefully reviewed the record, the Board concludes that service connection is not warranted for the claimed low back and left hip and leg disabilities.  The Veteran reported in a statement received in August 2005 that during "combat related military service (Vietnam) had a fracture femur also developed a herniated lumbar disk."  With respect to the lumbar spine, he has not asserted that he experienced an injury, disease or event in service that resulted in a herniated disk.  In fact, during the 2005 examination, he reported that his back pain started in 1970, years after service, and again did not report an injury, disease or incident of service (combat or otherwise), that resulted in current disability.  Accordingly, 38 U.S.C.A. § 1154(b) is not applicable with respect to the back claim.  

With respect to the left hip and leg claim, the Board notes that the Veteran has reported that he was injured as a result of a rocket propelled grenade attack in service.  In recognition of the difficulty of collecting or preserving proof in combat conditions, 38 U.S.C.A. § 1154(b) allows veterans to establish a presumption of service-connection by lay or other evidence in the absence of official records.  Maxson v. Gober, 230 F3d 1330 (2000).  Pursuant to the three step analysis set forth in Maxson v. Gober, it must first be determined whether the veteran has presented "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease," 38 U.S.C.A. § 1154(b), and second it must be determined whether the evidence is "consistent with the circumstances, conditions, or hardships of such service."  Id.  If these two steps are met, the Secretary will accept the evidence as "sufficient proof of service-connection," id., regardless of the absence of official records.  In the third and final step of the analysis, it must be determined whether VA rebutted the presumption with "clear and convincing evidence to the contrary."  Id.

In this case the Board notes that the Veteran's statements regarding an injury in service due to a rocket propelled grenade lack credibility.  He has provided inconsistent statements concerning the origin of his left hip and leg disability.  He has on a number of occasions reported that the precipitating injury occurred after service, including as due to a post-service assault.  Accordingly, the Board finds that his statements concerning how the injury occurred are inconsistent and therefore not credible.  As a result, the Veteran has not presented satisfactory lay evidence of incurrence of an injury in service.  

Regarding the nexus requirement, the VA examiners concluded, following a comprehensive review of the record and the Veteran's history, as well as physical examination, that the claimed disabilities were unrelated to service.  This is highly probative evidence against the claims.  It is also noted that there is no indication that the Veteran had arthritis of the lumbar spine within one year of discharge.  Moreover, the Veteran has most recently asserted that the claimed disabilities are related not to service but to his service-connected pes planus.

For the purpose of secondary service connection, the Board observes that there is a diagnosis of pes planus that is subject to service connection.  However, the Veteran has neither produced nor identified competent evidence showing that his service-connected pes planus either caused or aggravated the claimed low back and left lower extremity disabilities.  On the other hand, the May 2012 VA examiner concluded that the claimed disabilities were less likely than not incurred in or caused by service, and that they were also not proximately due to or aggravated by the service-connected disability.  

The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service or to a service-connected disability.  While the record demonstrates that the Veteran has diagnoses relating to his low back and left leg and hip, it does not contain competent evidence which relates these disabilities to any incident of service or to the service-connected pes planus.  

The Board has considered the Veteran's lay assertions that his low back and left lower extremity disabilities are the result of service, or to his service-connected pes planus.  Certainly, he is competent to report sensory or observed symptoms, and his statements in that regard are entitled to some probative weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Generally, however, a lay person is not competent to diagnose certain medical disorders or render an opinion as to the cause or etiology of disorders such as arthritis, disc disease, sacroiliitis condensa, compression fractures and fibrosis, because he or she does not have the requisite medical knowledge or training.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence).  In this instance, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as those referenced and linking such to service or service-connected pes planus.  Given the Veteran's lack of demonstrated medical expertise, his statements regarding any such diagnosis or link are much less probative than the findings of the competent VA health care specialists discussed above.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise).

In this case, the VA examiners have concluded that the low back and left lower extremity disabilities are not related to service nor are they due to or aggravated by the service-connected pes planus.  The examiners provided reasoned opinions, based on complete review of the record and examination of the Veteran.  In assigning high probative value to these opinions, the Board notes that the VA examiners reviewed the medical history, conducted physical examinations, and discussed the rationale underlying their conclusions.  There is no indication that the examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. The Board thus finds the examiners' opinions to be of greater probative value than the Veteran's unsupported statements to the contrary.

For these reasons, the Board concludes that the claims for service connection for lumbar spine and left leg and hip disorders must be denied.  The preponderance of the evidence is against the Veteran's claims and the doctrine of reasonable doubt is not applicable in the instant appeal.  38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 

Evaluation of Pes Planus

The Veteran asserts that his bilateral pes planus is more severe than is indicated by the current 10 percent evaluation.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4.  The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  38 C.F.R. §§ 4.1, 4.2 (2008); see also Francisco v. Brown, 7 Vet. App. 55 (1994).  In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  In this case the Board has concluded that the disability has not significantly changed and that a uniform evaluation is warranted for the period considered.

In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

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 disuse.  38 C.F.R. § 4.45.

The intent of the Rating Schedule is 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.

Under 38 C.F.R. § 4.71a , Diagnostic Code 5276, bilateral pes planus warrants a 10 percent evaluation where it is moderate, with the weight bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet.  A 30 percent evaluation is assignable when it is severe, with objective evidence of marked deformity, pain on manipulation and use accentuated, and where there are swelling on use and characteristic callosities.  For pronounced bilateral pes planus manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances, assignment of a 50 percent rating is warranted. 

Other foot injuries are evaluated pursuant to 38 C.F.R. § 4.71a , Diagnostic Code 5284, which allows a 10 percent evaluation for moderate disability. A 20 percent evaluation is assigned where there is moderately severe disability, and a 30 percent evaluation is assigned where there is severe disability.

On VA examination in October 2005, the Veteran reported heel pain on the right foot and pain with walking.  The Veteran presented with an antalgic gait, using a cane for partial weight bearing on the left lower extremity.  The examiner noted that the Veteran had purchased orthotics; he reported that they helped minimally.  On weight bearing, the Veteran had some lateral deviation of the left Achilles tendon, indicating a positive Helbing's sign.  The right Achilles tendon was normal.  There was no focal tenderness or pain with the exception of some plantar fascial pain bilaterally.  The examiner noted that he was unable to detect any painful motion, edema, weakness, or instability.  He indicated that the Veteran's functional limitations on standing and walking were primarily because of his left femur fracture.  X-rays revealed a prominent bone spur with joint space narrowing of the left first metatarsophalangeal joint.  The examiner noted that the Veteran had hallux limitus in that area which was essentially asymptomatic on examination.  The Veteran asserted that his back and foot conditions prevented him from performing his duties as a math teacher and functioning as a real estate agent.

An additional VA examination was carried out in November 2010.  The Veteran stated that he was not being treated for his foot disability, but noted that he could barely walk due to his left lower extremity disability.  The Veteran denied a history of injury to the feet.  The examiner noted that bilateral foot examination failed to reveal heat, redness, stiffness, fatigability, or lack of endurance.  The Veteran reported pain on use, swelling, and weakness.  He noted that he was able to stand for 15 to 30 minutes and that he could walk more than one quarter mile but less than a mile.  The examiner noted that the Veteran used shoe inserts but that they were not effective.  Physical examination revealed no evidence of swelling, instability, weakness, or abnormal weight bearing.  There was objective evidence of painful motion at the plantar fascia and tenderness at the left plantar fascia and heel and right plantar fascia and in the dorsal aspect at the metatarsals.  Achilles alignment was normal on both non weight bearing and weight bearing.  There was no pronation.  An arch was present on non-weight bearing but not on weight bearing.  There was pain on manipulation.  There was no muscle atrophy of the feet.  An X-ray study revealed normal feet with no signs of fracture, dislocation, or arthritic changes.

On VA examination in May 2012, flexible pes planus was diagnosed.  The examiner noted that the Veteran had accentuated pain on use.  He indicated that there was no pain on manipulation.  There was no indication of swelling, and no characteristic calluses.  The examiner noted that the Veteran's symptoms were relieved by orthotics.  He indicated that the longitudinal arch was decreased on weight bearing.  There was no objective evidence of marked deformity of the feet, and no marked pronation of the feet.  Bilaterally, the weight bearing line fell over or was medial to the great toe.  There was no lower extremity deformity other than pes planus causing alteration of the weight bearing line.  There was inward bowing of the Achilles tendons, but no marked inward displacement and severe spasm of the Achilles tendons on manipulation.  

Upon careful review of the record, the Board has determined that a higher evaluation for bilateral pes planus is not warranted for any period of time that is covered by this claim.  The current evaluation contemplates moderate pes planus, with the weight bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet.  A higher 30 percent evaluation requires evidence of severe pes planus, with objective evidence of marked deformity, pain on manipulation and use accentuated, and where there are swelling on use and characteristic callosities.  Severe disability is not shown or approximated in this case.  While pain and tenderness are noted in the VA examination reports, there is no indication of accentuated pain on manipulation, nor is there evidence of marked deformity, swelling on use, or characteristic callosities.  While the Veteran did have accentuated pain on use, such alone is insufficient to warrant the higher rating.  Moreover, pronounced disability manifested by marked pronation, marked inward displacement and severe spasm of the tendo Achilles on manipulation is not shown.  While the Veteran did have tenderness of the plantar surfaces of the feet, it was not described as extreme and therefore is insufficient to warrant a rating of 50 percent.  Accordingly, the Board finds that the current, 10 percent, evaluation is appropriate in this case.

As noted, the Board is required to consider the effect of pain and weakness when rating a disability of the musculoskeletal system. 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca.  However, the evidence does not demonstrate functional limitation due to pain or weakness that more nearly approximates the criteria for a 30 percent evaluation for bilateral pes planus.  As such, the Board finds that the currently assigned evaluation is appropriate for this disability.

The Board has considered whether the disability should be rated pursuant to Diagnostic Code 5284 pertaining to other foot injuries.  However, the Veteran's symptoms attributable to pes planus are fully contemplated by the criteria set forth in Code 5276.  In addition, the Veteran specifically denied that he had foot injuries.  Accordingly, the Veteran's disability is best rated pursuant to Code 5276.

The Board notes that the Veteran is competent to report that his disability is worse.  However, the Board concludes that the more probative evidence consists of that prepared by the skilled VA clinicians who assessed the signs, symptoms and functional limitations due to the service-connected disability.  Therefore, the Board concludes that the evidence preponderates against a finding that an increased evaluation is warranted.  As such, the appeal is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

      Extraschedular Consideration

Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2010); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three- step inquiry for determining whether a Veterans entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected bilateral pes planus. The evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate.  In fact, as discussed in detail above, the symptomatology of the Veteran's disability is specifically contemplated under the appropriate rating criteria.  Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule.

Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot.  In short, the evidence does not support the proposition that the Veteran's service connected disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012).


ORDER

Entitlement to service connection or a low back disability is denied.

Entitlement to service connection for a left leg and hip disability is denied.

Entitlement to an evaluation in excess of 10 percent for bilateral pes planus is denied.


REMAND

The Veteran seeks a TDIU.  Since the instant issues were last before the Board in October 2010, service connection has been granted for prostate cancer (rating decision of March 2012) and an acquired psychiatric disorder (rating decision of March 2013).  Notably, a VA psychiatric examiner in June 2012 provided no opinion as to the Veteran's employability, as she noted that she saw no indication that the Veteran was service-connected for a psychiatric disorder.  Indeed, the rating decision granting service connection was not promulgated until after the VA psychiatric examination.  Accordingly, an examination is warranted at this time.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to determine whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected psychiatric disorder and/or pes planus, based upon his education and work experience.  The claims file should be made available to the examiner for review.  

Following review of the record, interview with the Veteran, and all appropriate evaluation and examination, the examiner should provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected psychiatric disorder, either alone or in combination with the service-connected pes planus, precludes him from obtaining and maintaining substantially gainful employment, based on his educational and occupational background.

If the examiner finds that the Veteran is capable of obtaining and maintaining substantially gainful employment of any type, based on his educational and occupational background, she is asked to provide an example or examples of the types of jobs he could have obtained and/or maintained at that time.

A complete rationale should accompany all opinions expressed.

2.  After the requested opinion has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand.  The report should be returned to the examiner if deficient in any manner. 

3.  Readjudicate the Veteran's claim for a TDIU, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand.  If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs