Citation Nr: 1325697 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 03-29 974 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for pes planus. 2. Entitlement to an initial rating in excess of 10 percent for tinea pedis with onychomycosis, bilateral. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to October 1972. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By a Decision Review Officer's (DRO) decision in May 2009, the RO granted service connection for tinea pedis with onychomycosis bilateral feet and assigned a 10 percent disability rating, effective April 8, 2002. Subsequently, in a September 2011 rating action, the RO granted service connection for pes planus and assigned a 10 percent disability rating, effective April 8, 2002. In April 2012, the RO increased the evaluation for the pes planus from 10 percent to 30 percent, effective April 8, 2002. The Board has reviewed the Veteran's physical claims file, as well as the Veteran's electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. The issue of entitlement to an initial rating in excess of 10 percent for tinea pedis with onychomycosis bilateral feet is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Since the effective date of the award of service connection, the Veteran's service-connected bilateral pes planus has been manifested, primarily, by no more than accentuated pain on manipulation and use, swelling on use, characteristic calluses, extreme tenderness of plantar surfaces, and inward bowing of Achilles tendon, producing functional impairment consistent with severe bilateral pes planus. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). See also 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of letters dated in September 2002, May 2003, and February 2009 from the RO to the Veteran, which were issued prior to the RO decision in May 2009. An additional letter was issued in May 2010. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Consequently, this letter 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. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this rating issue. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. The Veteran has been afforded VA examinations on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and examined the Veteran. The reports include all that is necessary to rate the disabilities. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. The service treatment records are completely silent with respect to any finding of pes planus, except for a notation of "peds plantis" on the separation examination in October 1972. Post service treatment reports dated from December 2000 to January 2003 show that the Veteran received clinical attention for various foot disorders, including pes planus. The Veteran was afforded a VA examination in March 2009. At that time, it was noted that he had preexisting congenital flat feet deformity and he maintained that active duty activities aggravated progression of the disease beyond the natural course. The Veteran denied any high energy injury during service, fracture, or significant treatment. The Veteran reported symptoms of pain and stiffness while walking, standing and at rest in both feet; he also reported problems with and lack of endurance while walking and standing in both feet. The Veteran reported weakness in the left foot while standing and walking; however, he only had weakness in the right foot while standing. The Veteran reported daily flare-ups. He noted that precipitating factors included walking, standing, bending and squatting; he had relief with activity modification, pain medications and rest. It was noted that the Veteran uses molded orthopedic inserts and a cane for assistance. Examination of the left foot revealed tenderness in the posterior medial hindfoot; and, the Veteran was unable to single/double heel raise. There was no evidence of painful motion, swelling, instablility, or abnormal weight bearing. Examination of the right foot revealed tenderness of the posteriormedial hindfoot structures. The Veteran was unable to single/double heel raise. There was inward bowing and malalignment of both feet, which were correctable with manipulation. There was mild pronation of both feet. There was no muscle atrophy of the feet. X-ray study of the feet revealed that the longitudinal arch was flattened bilaterally. The pertinent diagnosis was bilateral flat foot disability; the impact on occupational activities include decreased mobility, lack of stamina, weakness or fatigue, decreased strength in the lower extremities and pain. Received in May 2009 were VA progress notes dated from October 2006 to January 2006, which show that the Veteran received ongoing clinical attention and treatment for bilateral flat foot and foot pain. Received in March 2011 were VA progress notes dated from April 2008 to June 2010, which show that the Veteran received ongoing clinical attention and treatment for bilateral flat foot and foot pain. The Veteran was afforded another VA examination in September 2011. The Veteran indicated that he continues to experience symptoms in both feet; he is followed in Podiatry and he wears shoe inserts and custom shoes. He denied any new injuries, surgeries or injections. The Veteran reported pain on use of both feet. It was noted that the pain was accentuated on use of both feet. It was reported that the Veteran has pain on manipulation of the left foot and the pain is accentuated on manipulation. It was also noted that the Veteran has swelling on use of both feet. He also reportedly had characteristic calluses on both feet. It was noted that the Veteran's symptoms are relieved by arch supports. The examiner reported that the Veteran has extreme tenderness of the plantar surfaces of both feet, but the tenderness was reported to be improved by orthopedic shoes. The Veteran had decreased longitudinal arch height on weight bearing of both feet. There was no objective evidence of marked deformity of the feet; there was no marked pronation of the feet. It was noted that the weight bearing line falls over or medial to the great toe. There was no other deformity of the lower extremity other than pes planus causing alteration of the weight bearing line. The examiner noted that the Veteran had inward bowing of the Achilles' tendon of both feet, but he did not have marked inward displacement and severe spasm of the Achilles tendon on manipulation. The examiner stated that the Veteran does not have any scars related to his pes planus. He noted that the Veteran uses a cane on a constant basis. Function is not diminished that amputation with prosthesis would equally serve with the Veteran. The impression was bilateral pes planus. It was noted that the Veteran last worked in 2005 in construction and warehouses; he had difficulty with prolonged standing, walking, bending and lifting. III. Legal Analysis. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. Part 4 (2012). 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history, and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the entire recorded history, and that each disability must be considered from the point of view of the Veteran's working or seeking work. Separate diagnostic codes identify the various disabilities. 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. 38 C.F.R. § 4.7. Otherwise, the lower rating is to be assigned. A disability may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. However, where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations can be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001). In this case, the Board has concluded that the Veteran's disabilities have not significantly changed and that uniform evaluations are warranted for this claim period. The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2012) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2012). See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40 (2012). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45 (2012). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2012). When there is an approximate balance of 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. In making its determination, the Board must determine the credibility and probative value of the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). The Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Veteran's pes planus are currently rated at 30 percent under Diagnostic Code 5276. Pursuant to Diagnostic Code 5276, a 10 percent evaluation is for assignment for a moderate disability with evidence of weight bearing line over or medial to the great toe, inward bowing of the tendo Achilles, pain on manipulation and use of the feet whether the disability is unilateral or bilateral. For a severe pes planus disability, the rating criteria contemplates objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indications of swelling on use with characteristic callosities, with a 20 percent evaluation assigned for a unilateral disability and a 30 percent evaluation for a bilateral disability. Lastly, 30 and 50 percent evaluations may be assigned for unilateral and bilateral pes planus, respectively, that is pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation that is not improved by orthopedic shoes or appliances. The Board notes that words such as "severe" and "moderate" are not defined in the Rating Schedule except to the extent that the remainder of the criteria defining each level of disability describe the severity. Although the use of similar terminology by medical professionals should be considered, the description is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2012). After review of the evidentiary record, the Board finds that the Veteran is not entitled to an initial evaluation in excess of 30 percent for his service-connected bilateral pes planus. The Board finds that the currently assigned 30 percent evaluation fully contemplates the level of disability due to the Veteran's service-connected bilateral pes planus. Significantly, while the treatment reports indicate that the Veteran complains of severe pain in both feet, especially with prolonged walking and standing, and he reportedly has an antalgic gait, the Veteran's bilateral pes planus is not shown to be pronounced, resulting in marked pronation, such as to warrant a higher evaluation under Diagnostic Code 5276. See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012). Further, while the September 2011 examination reported that the Veteran had extreme tenderness on both feet and calluses on the ball of each foot, a marked inward displacement and severe spasm of the tendo Achillis on manipulation which is not improved by orthopedic shoes or appliances was not shown. As such, the preponderance of the evidence is against a rating in excess of 30 percent for bilateral pes planus, and the claim is denied. The Board has considered the impact of DeLuca, with regard to the Veteran's bilateral pes planus. However, the Court has held that where a Diagnostic Code is not predicated on a limited range of motion alone, the provisions of 38 C.F.R. §§ 4.40 and 4.45, with respect to pain, do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). In this case, Diagnostic Code 5276 is not based on limitation of motion; therefore, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply. In any event, there has been no demonstration of additional functional limitation of the feet such as to enable a finding that the Veteran's disability picture more nearly approximates a 50 percent evaluation. In reaching its decision, the Board has considered the Veteran's statements regarding his pain and functional limitations. The Board finds that the Veteran is competent to report that he has pain and to observe and report any functional limitations. However, the Board finds that the pain and functional impairment reported, consistent with the documented symptoms, do not warrant a higher rating. For these reasons, the Board finds that the preponderance of the evidence is against the claim for an initial rating higher than 30 percent for pes planus. 38 U.S.C.A. § 5107(b). The Board has also considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected pes planus is inadequate. A comparison between the level of severity and symptomatology of the Veteran's pes planus with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Further, the Veteran has not alleged that the schedular criteria are inadequate. Therefore, the available schedular evaluations for that service-connected disability are adequate. Referral for extraschedular consideration is not warranted. In conclusion, the Board finds that the criteria for an initial rating in excess of 30 percent for bilateral flat feet have not been met. Where, as here, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial rating in excess of 30 percent for bilateral pes planus is denied. REMAND As for the Veteran's claim for an initial rating in excess of 10 percent for tinea pedis with onychomycosis, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5103A. The Veteran's service-connected tinea pedis is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Codes 7813-7806. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). 38 C.F.R. § 4.27. Diagnostic Code 7813 provides ratings for dermatophytosis (or ringworm) in various locations on the body, including the body (tinea corporis), the head (tinea capitis), the feet (tinea pedis), the beard (tinea barbae), the nails (tinea unguium), and the inguinal area, also known as jock itch (tinea cruris). Diagnostic Code 7813 provides that dermatophytosis is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. 38 C.F.R. § 4.118 (2012). Diagnostic Code 7806 provides that a 10 percent rating is assigned for at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent evaluation will be assigned where 20 to 40 percent of the entire body or 20 to 40 percent of exposed area is affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent evaluation will be assigned for dermatitis that covers more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or with constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118 (2012). The Board notes that effective October 23, 2008, VA revised portions of the rating schedule that addresses the skin. However, these amendments only apply to applications received by VA on or after October 23, 2008, or if the Veteran expressly requests consideration under the new criteria, which he has not done here. Additionally, his claim was received by VA in April 2002, prior to October 2008. Thus, the revisions do not alter or affect the Veteran's claim. Also, in a statement dated in December 2009, the Veteran's attorney noted that the skin condition is chronic and progressive. The attorney further noted that the treatment for the Veteran's skin condition has ranged from ointments to powders, and nothing has effectively relieved the symptoms. The contentions made by the Veteran's attorney strongly suggest that the Veteran's skin condition has increased in severity since the last VA examination of the claimant's disorder in March 2009. The United States Court of Appeals for Veterans Claims has held that when a Veteran alleges that his service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment, particularly if there is no additional medical evidence that addresses the level of impairment of the disability since the previous examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the veteran was entitled to a new examination after a two-year period between the last VA examination and the veteran's contention that the pertinent disability had increased in severity). An additional examination is needed for the appropriate examiner to ascertain the current severity and impairment of the Veteran's service-connected tinea pedis with onychomycosis of both feet. VA outpatient treatment records dated through November 2012 have been associated with the Virtual VA file. Because there may be outstanding VA medical records that contain information pertinent to the Veteran's claim, an attempt to obtain any VA records dated after November 2012 should be made. 38 C.F.R. § 3.159(c) (2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran should also be asked to identify any additional relevant non-VA evidence. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to his claim and to ensure full compliance with due process requirements, the case is REMANDED to the AOJ for the following actions: 1. The AOJ should obtain the names and addresses of all medical care providers, VA as well as non-VA, who have treated the Veteran for his service-connected tinea pedis with onychomycosis. The AOJ should attempt to obtain any additional VA medical records not already on file, which may exist and incorporate them into the claims folder. If the records are not available, a notation to that effect should be placed in the claims file and the Veteran notified of the problem. 2. After all available records and/or responses from each contacted entity have been associated with the claims file, the AOJ should arrange for the Veteran to undergo a VA dermatology examination to determine the nature and current severity of his service-connected skin disability of the feet. The claims file must be made available to the examiner, the examiner must review the claims file in conjunction with the examination. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should describe the area(s) of the body affected by the skin disorder, to include the percentage of the entire body affected and the percentage of exposed area(s) affected. The examiner should also specifically note whether the Veteran has been prescribed any systemic therapy such corticosteroids or other immunosuppressive drugs, as well as the period of time prescribed during the prior 12 months. 3. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, the AOJ should re-adjudicate the Veteran's claim remaining on appeal on the basis of all evidence of record and all applicable laws and regulations. If a benefit sought is not granted, the Veteran and his attorney should be furnished a Supplemental Statement of the Case (SSOC), which includes a summary of additional evidence submitted. The SSOC must provide reasons and bases for any decision reached. Thereafter, the Veteran and his attorney should be given the opportunity to respond. After the above actions have been accomplished, the case should be returned to the Board for the purpose of appellate disposition, if indicated. The purposes of this REMAND are to further develop the record and to accord the Veteran due process of law. By this REMAND, the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the Veteran until he is notified. 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs