Citation Nr: 1325612 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 08-23 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an increased rating for service-connected bilateral pes planus, rated 10 percent disabling prior to February 19, 2013, and 30 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Army from June 1992 to September 1992 and from April 1993 to November 1995. The matter initially came to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In November 2011, the Board denied the Veteran's claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2012, the Court granted a joint motion to remand (JMR) agreed upon by the Veteran and the Secretary of the VA. The claim was remanded to the Board. In January 2013, the Board remanded the case for additional development. In a May 2013 rating decision, the RO granted an increased evaluation of 30 percent, effective from February 19, 2013. The Veteran is presumed to be seeking the maximum possible evaluation. Despite the grant of the increased evaluation, the Veteran has not been awarded the highest possible evaluation. As a result, the issue remains on appeal, as the Veteran has not indicated satisfaction with the 30 percent rating. A.B. v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Prior to February 19, 2013, the Veteran's right foot disability more closely approximates a severe foot disability. 2. Since February 19, 2013, the Veteran's right foot disability more closely approximates a severe foot disability. 3. Prior to February 19, 2013, the Veteran's left foot disability more closely approximates a severe foot disability. 4. Since February 19, 2013, the Veteran's left foot disability more closely approximates a severe foot disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 30 percent for a right foot disability prior to February 19, 2013 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1- 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5284 (2012). 2. The criteria for a disability rating of 30 percent for a right foot disability since February 19, 2013 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1- 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5284 (2012). 3. The criteria for a disability rating of 30 percent for a left foot disability prior to February 19, 2013 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1- 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5284 (2012). 4. The criteria for a disability rating of 30 percent for a left foot disability since February 19, 2013 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1- 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In a claim for increase, the VCAA notice requirements include notice to provide, or ask VA to obtain, medical or lay evidence of increased severity and the impact thereof on employment to substantiate the claim; and providing examples of types of medical or lay evidence that may be submitted, or that VA can be asked to obtain, which are relevant to establishing an increased rating. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), affm'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed.Cir. 2009). The RO provided the Veteran with pre-adjudication VCAA notice by letters dated in February 2007 and May 2008. VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Here, the Veteran's statements, his service treatment records, and post-service VA treatment records have been associated with the claims folder. The Veteran was provided with VA examinations in February 2007, November 2009, and February 2013. The Board finds that the February 2013 VA examination report was adequate because the examiner conducted a clinical evaluation, reviewed the Veteran's medical history, and described the foot disabilities in sufficient detail so that the Board's evaluation is an informed determination. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). This case was remanded by the Board in January 2013. The remand directed the AMC to obtain any pertinent, outstanding records and afford the Veteran a VA examination to determine the nature and severity of his pes planus disability. The AMC has complied with the Board's January 2013 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Currently, the Veteran's bilateral pes planus disability is rated under Diagnostic Code 5276 for flatfoot, acquired. Under DC 5276 acquired flatfoot is evaluated as follows: moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. Other Diagnostic Codes pertaining to disabilities of the feet include; Diagnostic Code 5277 for weak foot, bilateral; Diagnostic Code 5278 for claw foot (pes cavus), acquired; Diagnostic Code 5279 for metatarsalgia, anterior (Morton's disease), unilateral, or bilateral; Diagnostic Code 5280 for hallux valgus, unilateral; Diagnostic Code 5281 hallux rigidus, unilateral, severe; Diagnostic Code 5282 for hammer toe; Diagnostic Code 5283 for malunion or nonunion of the tarsal or metatarsal bones; and Diagnostic Code 5284 for other foot injuries. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Court, in DeLuca v. Brown, 8 Vet. App. 202 (1995), held that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. See 38 C.F.R. §§ 4.40 , 4.45 (2012). However, the Court has held that where a diagnostic code is not predicated on a limited range of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The Veteran was afforded a VA examination in February 2007. The Veteran reported that he had pain in the soles of his feet when he walked or stood and because of the pain he could only walk one tenth of a mile before he had to stop and rest. He described his pain as aching and stinging. The Veteran also reported that he received no relief from inserts. The Veteran stated that he was a truck driver and the pain in his feet was present when he operated the clutch and the brake of the truck. The Veteran reported that he worked full-time regardless of the pain and he had never missed work due to the pain in his feet. The Veteran denied flare-ups. The examiner also noted that the Veteran reported that he did exercises in the morning before weight bearing to prevent pain. Upon examination, the examiner noted that the Veteran walked with a normal gait. The Veteran's feet appeared grossly normal except for low arches. The Veteran had pes planus on standing. Palpation and manipulation of the feet revealed bilateral pain at the soles of the feet near the heel. Manipulation of the forefoot did not reveal pain in either foot. There was no distal metatarsal pain in either foot. There was no pain in either foot with manipulation or touching of the toes. There were no calluses present and there was no club foot. The Achilles tendons inserted normally, alignment was normal, and there was no abnormal valgus. The neurological examination was normal and there were no abnormal vascular changes. There were no hammertoes or clawfoot. Each toe was normal and each toe was in the correct position. X-rays of both feet were normal. The examiner diagnosed pes planus bilateral and plantar fasciitis, bilaterally. The examiner stated that he was unable to estimate function during a flare-up without undue speculation. VA treatment records located in the claims file and Virtual VA dated December 2006 to January 2013 show that the Veteran was treated for bilateral foot pain. The Veteran received bilateral foot injections and shoe orthotics. The Veteran reported that neither the orthotics nor the foot injections provided relief. The Veteran was afforded another VA examination in November 2009. The Veteran stated that he had pain in his feet 90 percent of the time. He stated that the pain was worse when he walked and the pain kept him awake at night. The Veteran reported that he wore shoe inserts that relieved a small amount of pain. The Veteran stated that he did his current job as a truck driver and never missed work despite the pain. The Veteran stated that he had flare-ups that continued for about ten minutes every one to two weeks. He also stated that he could walk about six blocks or half a mile. He also reported that he could stand for about ten minutes and have to rest because of the pain. Upon examination, the Veteran's gait was even and typical for flat feet. There was hallux valgus 14 degrees bilaterally. There were no callosities or breakdown. There was abnormal shoe wear indicating abnormal weightbearing. There was pes planus present on standing. The arches were present on sitting and non-weightbearing. There was subjective pain with palpation of the arches in both feet with the right side being more typical of the middle arch. The posterior arch on the right side and on the left side was more medial and distal. On both feet, toes number two and three were slightly dorsal riding and toes number four and five underriding, that is, five under four and four under three. The examiner stated that the dorsal riding of toes two and three could be considered early hammertoe. The insertion of the Achilles tendon was normal. Range of motion of the toes was normal. There was little or no rotation of the ankle with feet pes planus. Manipulation of the distal forefoot was negative on the right for pain, and on the left it was very slightly, but objectively, positive for mild pain in the metatarsal area. There was no other deformity noted. The examiner diagnosed bilateral pes planus, mild metatarsalgia on the left, and hallux valgus mild. The examiner stated that concerning Deluca, he was unable to estimate function during a flare-up without undue speculation. The Veteran was afforded another VA examination in February 2013. The Veteran reported that he had developed increased pain in the soles of both feet to the point he was having difficulty with his occupation as a regional truck driver. The Veteran reported that he had to climb in and out of the truck multiple times during the day to load and unload the truck and make deliveries with a dolly. He stated that he walked up and down inclines. He also reported that he had daily flare-up of pain rated at 8/10. The Veteran stated that the flare-up pain was made worse by standing, walking more than 40 yards, squatting or kneeling, and walking up and down inclines or stairs. Upon examination, there was pain on use of both feet. The pain was accentuated by use. There was bilateral pain on manipulation of the feet. The pain was accentuated by manipulation. There was no swelling. There were characteristic bilateral calluses. Bilateral symptoms were not relieved by arch supports. There was extreme tenderness of the plantar surface on both feet that was not improved by orthopedic shoes or appliances. There was decreased bilateral longitudinal arch height on weightbearing. There was objective evidence of marked deformity of both feet. There was no marked pronation. The weightbearing line did not fall over or medial to the great toe. There was no other lower extremity deformity other than pes planus. There was bilateral inward bowing of the Achilles tendon. There was no marked inward displacement or severe spasms of the Achilles tendon on manipulation. There were no scars. The Veteran used bilateral podiatric shoe inserts for arch support. There was no degenerative or traumatic arthritis documented. The diagnosis was bilateral pes planus, moderate to severe bilateral plantar fasciitis, and moderate hallux valgus. The examiner opined that plantar fasciitis was at least as likely as not proximately due to or the result of the Veteran's service-connected condition. The examiner stated that a review of the claims file and CPRS found documentation that the Veteran was seen by multiple medical disciplines for bilateral foot pain both in the military and at the VAMC. The examiner also stated that the claims file did not contain a diagnosis of plantar fasciitis, but documented pain along the sole of the foot while in active military service was consistent with plantar fasciitis. The examiner also stated that he was unable to differentiate between plantar fasciitis and metatarsalgia. He stated that there was bilateral tenderness noted at the first metatarsal joint of the great toe that continued along the plantar fascia. The examiner also concluded that hallux valgus was less likely as not caused by or a result of the Veteran's service connected pes planus. The examiner stated that a review of the claims file found no documentation of hallux valgus during active military duty. He opined that the Veteran's hallux valgus was a result of poor fitting shoe wear. The examiner stated that a review of the medical literature found no documentation of a correlation between pes planus and hallux valgus. The Board also notes that the examiner concluded there was no radiological or clinical evidence of hammertoe on either foot. In this case, the Veteran's bilateral pes planus is associated with plantar fasciitis and metatarsagia. Under Diagnostic Code 5276 the Veteran is not entitled to a higher rating for his foot disorder because he does not present with marked pronation, marked inward displacement, or severe spasm of the tendo achillis on manipulation. The Board finds that given the level of involvement and nature of his current bilateral foot symptomatology, Diagnostic Code 5284 (for other foot injuries) most accurately addresses his symptomatology. This determination is more favorable to the Veteran because plantar fasciitis is not listed under the Schedule for Rating Disabilities and under Diagnostic Code 5284 the Veteran will be rated separately for each foot at an evaluation that is higher than under the other related Diagnostic Codes. The Veteran has already exceeded the maximum rating under Diagnostic Code 5279 for Metatarsalgia (bilateral). Additionally, there is no evidence that the Veteran has weak foot, claw foot, hallux rigidus, hammer toe, or malunion/nonunion of tarsal or metatarsal bones, therefore Diagnostic Codes 5277, 5278, 5282, and 5283 are not applicable. The 2013 VA examiner specifically indicated that there in fact was no x-ray evidence of hammertoes despite the 2009 VA examiner's indication that the toe formation "can be considered early hammertoe." Furthermore, the February 2013 VA examiner found that there was no correlation between the Veteran's pes planus and hallux valgus; therefore, pes planus did not cause hallux valgus much less aggravated this disorder. Thus, Diagnostic Code 5280 is also inapplicable. Under DC 5284, a 20 percent rating is assigned for moderately severe foot injuries and a 30 percent rating is assigned for severe foot injuries. The Board additionally observes that DC 5284 allows for the assignment of a 40 percent rating for loss of use of the foot. The Board observes in passing that the words "moderately severe" and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). Having considered the evidence above, the Board finds that throughout the pendency of the appeal, 30 percent ratings are warranted for both the Veteran's right foot disability and left foot disability under Diagnostic Code 5284. The Veteran suffers from, plantar fasciitis and metatarsalgia due to his service-connected pes planus. Each VA examiner noted that the Veteran had bilateral pain on palpation and manipulation of the feet. The Veteran also has abnormal weight bearing and marked deformity of both feet. Additionally, the Veteran has repeatedly reported that he suffers pain in both feet and receives little relief from shoe orthotics and feet injections. He has also continuously reported that he experiences limitations in his standing tolerance and walking distance. Given the competent and credible medical and lay evidence of record, the Board finds that the Veteran's right foot disability and left foot disability both more closely approximate severe foot disabilities under Diagnostic Code 5284. The Board finds that the Veteran is not entitled to a higher rating under Diagnostic Code 5284 because at no time during the pendency of the appeal has the Veteran been found to display a foot injury with actual loss of use of the foot. 38 C.F.R. § 4.71a. None of the VA examiners, nor the Veteran's VA outpatient treatment records, have documented that the Veteran displayed actual loss of use of his left foot or right foot due to his feet disability. All reasonable doubt has been resolved in favor of the Veteran in making this decision. Extraschedular In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1) for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board finds that the rating criteria contemplate the Veteran's bilateral foot disability for the entire duration of this appeal. The Veteran's foot disability is primarily productive of pain which is contemplated in the respective applicable rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. TDIU Finally, it is noted that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the Veteran has not reported that he is unemployable due to his bilateral foot disability, nor does the evidence of record suggest the same. Inasmuch as there is no evidence of unemployability due to the disability at issue here, TDIU is not raised by the record. ORDER A 30 percent disability rating for a right foot disability prior to February 19, 2013, is granted. A 30 percent disability rating for a right foot disability since February 19, 2013, is granted. A 30 percent disability rating for a left foot disability prior to February 19, 2013, is granted. A 30 percent disability rating for a left foot disability since February 19, 2013, is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs